UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
BIOANALYTICAL
SYSTEMS, INC.
(Exact
Name Of Registrant As Specified In Its Charter)
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INDIANA
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35-1345024
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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|
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|
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2701
KENT AVENUE
WEST
LAFAYETTE, INDIANA
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47906
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(Address
of principal executive offices)
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(Zip
code)
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(765)
463-4527
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(Registrant's
telephone number, including area
code)
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Non-Qualified
Stock Option
Agreement
with
Richard
M. Shepperd
Non-Qualified
Stock Option Agreement and
Employee
Incentive Stock Option Agreement with Michael R. Cox
Non-Qualified
Stock Option Agreement and
Employee
Incentive Stock Option Agreement with Edward M. Chait
Non-Qualified
Stock Option Agreement with Andrew N. Brown
Non-Qualified
Stock Option Agreement with Sue Faulconbridge
Non-Qualified
Stock Option Agreement with Bryan Green
Non-Qualified
Stock Option Agreement with Mark Wareing
Non-Qualified
Stock Option Agreement with Simon Hemmings
2008
Stock Option Plan
(full
title of the plans)
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Michael
R. Cox
Vice
President-Finance, Chief Financial Officer and Treasurer
Bioanalytical
Systems, Inc.
2701
Kent Avenue
West
Lafayette, Indiana 47906
(
Name
and address of agent for service
)
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(765)
463-4527
(Telephone
number, including area
code,
of agent for service)
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Copies
to:
Stephen
J. Hackman
Ice
Miller LLP
One
American Square, Box 82001
Indianapolis,
Indiana 46282
(317)
236-2100
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Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting
company:
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Large
accelerated filer
¨
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Accelerated
filer
¨
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Non-accelerated
filer
¨
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Smaller
Reporting Company
x
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CALCULATION
OF REGISTRATION FEE
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Title of Securities to be
Registered
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Amount to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Share(2)
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common
Shares (2008 Stock Option Plan)
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500,000
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$
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6.82
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$
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3,410,000
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$
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135
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Common
Shares (Shepperd Agreement)
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275,000
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$
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7.10
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$
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1,952,500
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$
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77
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Common
Shares (2004 Cox Agreements)
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50,000
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$
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4.58
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$
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229,000
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$
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9
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Common
Shares (2007 Cox Agreement)
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30,000
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$
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8.60
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$
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258,000
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$
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10
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Common
Shares (2004 Chait Agreements)
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50,000
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$
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5.69
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$
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284,500
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$
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11
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Common
Shares (2007 Chait Agreement)
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30,000
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$
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8.60
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$
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258,000
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$
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10
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Common
Shares (Brown Agreement)
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5,000
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$
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2.88
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$
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14,375
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$
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1
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Common
Shares (Faulconbridge Agreement)
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3,000
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$
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5.74
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$
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28,700
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$
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1
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Common
Shares (Green Agreement)
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2,000
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$
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4.25
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$
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12,750
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$
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1
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Common
Shares (Wareing Agreement)
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10,000
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$
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8.79
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$
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17,580
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$
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4
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Common
Shares (Hemmings Agreement)
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3,000
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$
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5.74
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$
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57,400
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$
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1
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(1)
Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended,
this Registration Statement covers such indeterminate additional shares of
common stock to be offered or issued to prevent dilution as a result of future
stock splits, stock dividends or other similar transactions.
(2)
The
offering price has been estimated solely for the purpose of the calculation
of
the registration fee. The registration fee has been calculated in the manner
described in paragraphs (c) and (h) of Rule 457 in the following
manner:
(a)
to
the
extent the exercise price of the options for which the underlying shares, or
the
grant price of the shares reoffered by this prospectus is known, the
registration fee is based upon the applicable exercise price; and
(b)
to
the
extent the offering price is not known, the registration fee is calculated
based
on the average of the high and low prices reported in the consolidated reporting
system.
Explanatory
Note
This
registration statement is being filed pursuant to General Instruction C to
Form
S-8 to register common shares of Bioanalytical Systems, Inc. (the "Company")
to
be issued pursuant to (a) the Company's 2008 Stock Option Plan, which
replaces the 1997 Employee Stock Option Plan and the 1997 Outside Director
Stock
Option Plan (expired), (b) the May 17, 2007 Non-Qualified Stock Option
Agreement with President and CEO Richard M. Shepperd in connection with his
extended employment agreement, (c) the April 1, 2004 Non-Qualified Stock
Option Agreement with Vice President of Finance and Administration Michael
R.
Cox in connection with his employment agreement, (d) the August 1, 2005
Non-Qualified Stock Option Agreement with Chief Business Officer Dr. Edward
M.
Chait in connection with his employment agreement, (e) the February 8, 2000
Non-Qualified Stock Option Agreement with Andrew N. Brown in connection with
his
employment agreement, (f) the July 22, 2005 Non-Qualified Stock Option
Agreement with Sue Faulconbridge in connection with her employment agreement,
(g) the December 11, 1998 Non-Qualified Stock Option Agreement with Bryan
Green in connection with his employment agreement, (h) the December 7, 2007
Non-Qualified Stock Option Agreement with Mark Wareing in connection with his
employment agreement, and (i) the July 22, 2005 Non-Qualified Stock Option
Agreement with Dr. Simon Hemmings in connection with his employment agreement,
as well as reoffers and resales of common shares issued pursuant to certain
option agreements with certain of our executive officers
.
This
Registration Statement contains several parts. Immediately following Part I
is a
prospectus that has been prepared in accordance with the requirements of Part
I
of Form S-3 (as required by Section c.1 of the General Instructions to Form
S-8). That prospectus will be used for offers and sales of our common shares
that may be issued upon exercise of the options granted pursuant to (a) the
May
17, 2007 Non-Qualified Stock Option Agreement with Mr. Shepperd, (b) the
April 1, 2004 Non-Qualified Stock Option Agreement with Mr. Cox (c) the Employee
Incentive Stock Option Agreement dated April 1, 2004 with Mr. Cox, (d) the
Employee Incentive Stock Option Agreement dated November 6, 2007 with Mr. Cox,
(e) the August 1, 2005 Non-Qualified Stock Option Agreement with Dr. Chait
in
connection with his employment agreement, (f) the Employee Incentive Stock
Option Agreement dated August 1, 2005 with Dr. Chait, and (g) the Employee
Incentive Stock Option Agreement dated November 6, 2007 with Dr. Chait. The
next
part contains information required in the registration statement pursuant to
Part II of Form S-8.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan Information.*
Item
2: Registrant Information and Employee Plan Annual
Information.*
*Information
required by Part I to be contained in the Section 10(a) Prospectus is omitted
from the Registration Statement in accordance with Rule 428 under the Securities
Act of 1933.
Prospectus
Bioanalytical
Systems, Inc.
435,000
Common Shares
This
prospectus is being used in connection with the offering from time to time
by
Richard M. Shepperd, Michael R. Cox and Edward M. Chait, Ph.D. (or by others
to
whom they may have pledged or donated such shares, or by their estates), of
an
aggregate of 435,000 of our common shares which may be issued by us upon the
exercise by or on behalf of Mr. Shepperd, Mr. Cox or Dr. Chait, in whole or
in
part, of stock options that we awarded to Mr. Shepperd (275,000 shares) on
May
17, 2007, Mr. Cox (50,000 shares and 30,000 shares, respectively) on April
1,
2004 and November 6, 2007 and Dr. Chait (50,000 shares and 30,000 shares,
respectively) on August 1, 2005 and November 6, 2007.
Persons
selling shares under this prospectus may sell their shares from time to time,
in
market transactions or otherwise, in one or more transactions, at fixed prices,
at prevailing market prices at the time of sale, or at prices negotiated with
purchasers. Brokers or dealers may receive commissions or discounts from selling
shareholders in amounts to be negotiated immediately prior to the sale. Such
brokers or dealers and any other participating brokers or dealers may be deemed
to be "underwriters" within the meaning of the Securities Act of 1933, as
amended (the “Act”), in connection with such sales. In addition, any securities
covered by this prospectus which qualify for sale pursuant to Rule 144 under
the
Act may be sold under Rule 144 rather than pursuant to this prospectus. We
will
not receive any of the proceeds from the sale of these shares; however, we
will
receive proceeds from any exercise of the options granted to Mr. Shepperd,
Mr.
Cox or Dr. Chait. There is no guarantee that these options will be exercised,
but any proceeds received therefrom will be used for working capital and general
corporate purposes. We will pay the expenses of preparing this prospectus and
the related registration statement.
Our
common shares are traded on the NASDAQ Global Market under the symbol “BASI.” On
September 29, the most recent practicable date prior to the date of this
prospectus, the NASDAQ Official Closing Price of our common shares was $4.60
per
share.
Our
principal executive offices are located at 2701 Kent Avenue, West Lafayette,
Indiana 47906; our telephone number is (765) 463-4527.
An
investment in our common shares being offered by this prospectus involves risks
and uncertainties. Before you purchase any our common shares, you should
carefully consider the information set forth under the heading “Risk Factors”
included in Item 1A of Part I of our annual report on Form 10-K for the fiscal
year ended September 30, 2007, as such Risk Factors may be updated after the
date of this prospectus by future "Risk Factors" sections that may be included
in our future annual reports on Form 10-K (currently designated Item 1A of
Part
I) and future “Risk Factors” sections in our future quarterly reports on Form
10-Q (currently designated Item 1A of Part II). See “INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE” and “WHERE YOU CAN FIND MORE
INFORMATION.”
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of the prospectus. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is September 30, 2008
TABLE
OF
CONTENTS
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7
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COMPANY
OVERVIEW
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7
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SHARES
OFFERED
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8
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CAUTION
ABOUT FORWARD-LOOKING STATEMENTS
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8
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INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
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9
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USE
OF PROCEEDS
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10
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SELLING
SHAREHOLDERS
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10
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PLAN
OF DISTRIBUTION
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11
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EXPERTS
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12
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12
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DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES LAW
VIOLATIONS
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13
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You
should rely only upon the information contained or incorporated by reference
in
this prospectus, or provided in a prospectus supplement, or in the registration
statement of which this prospectus is a part. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as
of
any date other than the date on the front page of those documents or that any
information that is incorporated by reference is accurate as of any date other
than as stated by such information. We have not authorized any other person
to
provide you with different information. If anyone provides you with different
or
inconsistent information, you should not rely on it.
We
are
not making an offer to sell these securities in any jurisdiction where the
offer
or sale is not permitted.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we have filed with the
Securities and Exchange Commission, or SEC, utilizing a "shelf" registration
statement. Under this shelf process, the selling shareholders named in this
prospectus (and their pledgees, donees, and estates, if any) may, from time
to
time, sell their common shares in one or more offerings. This prospectus
provides you with a general description of the common shares being offered.
You
should read this prospectus, including all documents incorporated herein by
reference, together with additional information described under the heading
"Where You Can Find More Information" included elsewhere in this
prospectus.
The
registration statement that contains this prospectus and the exhibits to such
registration statement, contain additional information about us and the
securities being offered under this prospectus. You should read the registration
statement and the accompanying exhibits for further information. The
registration statement and exhibits can be read and are available to the public
over the Internet at the SEC's website at http://www.sec.gov, and through a
link
to our SEC filings that we have included on the "Investors" page of our website
at
http://www.bioanalytical.com/invest/index.p
hp,
as
described under the heading "Where You Can Find More Information" included
elsewhere in this prospectus.
COMPANY
OVERVIEW
The
Company provides contract research services and sells research equipment to
many
leading global pharmaceutical, medical research and biotechnology companies
and
institutions. We offer an efficient, variable cost alternative to our clients'
internal product development programs. For our clients, the outsourcing of
development research to reduce overhead and speed drug approvals through the
Food and Drug Administration ("FDA") is an established alternative to in-house
research and development. Both our research services and research products
are
focused on determining drug safety and efficacy. Since our formation in 1974,
we
have been involved in research to help our clients in the approval process
for
drugs used to treat central nervous system disorders, diabetes, osteoporosis
and
other diseases. We support preclinical and clinical development needs of
researchers and clinicians for small molecule through large biomolecule drug
candidates. We believe our scientists have the skills in analytical
instrumentation development, chemistry, computer software development,
physiology, medicine, and toxicology to make the services and products we
provide increasingly valuable to our current and potential clients whose
scientists are engaged in analytical chemistry, clinical trials, drug metabolism
studies, pharmacokinetics and basic neuroscience research.
Our
principal executive offices are located at 2701 Kent Avenue, West Lafayette,
Indiana 47906; our telephone number is (765) 463-4527.
SHARES
OFFERED
We
are
registering for sale by the selling shareholders named in this prospectus (and
their pledgees, charitable donees, and estates, if any) up to 435,000 shares
of
our common shares that may be acquired upon the exercise by or on behalf of
the
selling shareholders in whole or in part, of certain options to purchase our
shares. We are also registering for sale by such persons any additional common
shares which may become issuable with respect to the shares covered by this
prospectus by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without the receipt of consideration, which
results in an increase in the number of our outstanding common
shares.
CAUTION
ABOUT FORWARD-LOOKING STATEMENTS
Certain
statements contained in this prospectus, including information incorporated
into
this document by reference, that are not historical facts may constitute
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended (referred to as the Securities Act), and Section 21E
of
the Securities Exchange Act of 1934, as amended (referred to as the Exchange
Act), and are intended to be covered by the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995. You can identify these
statements from our use of the words "may," "will," "should," "could," "would,"
"plan," "potential," "estimate," "project," "believe," "intend," "anticipate,"
"expect," "target" and similar expressions.
These
forward-looking statements are subject to significant risks, assumptions and
uncertainties, including among other things, changes in general economic and
business conditions. Readers are cautioned that reliance on any forward-looking
statement involves risks and uncertainties. Although we believe that the
assumptions on which the forward-looking statements contained in (or
incorporated by reference in, or which may in the future be incorporated by
reference, in) this prospectus are based are (or in the case of future
statements will be) reasonable, any of those assumptions could prove to be
inaccurate given the inherent uncertainties as to the occurrence or
nonoccurrence of future events. There can be no assurance that the
forward-looking statements contained in this prospectus (including any
statements that may now or in the future be incorporated into this prospectus)
will prove to be accurate. Risks and uncertainties that may affect our future
results include, but are not limited to, those discussed under the heading
“Risk
Factors” or similar headings in documents that are incorporated into this
prospectus by reference. The inclusion of a forward-looking statement should
not
be regarded as a representation by us that our objectives will be achieved.
Because
of these risks, assumptions and other uncertainties, our actual results,
performance or achievements may be materially different from the results,
performance or achievements indicated by these forward-looking statements.
In
addition, our past results of operations do not necessarily indicate our future
results.
You
should not place undue reliance on any forward-looking statements, which speak
only as of the dates on which they were made. We are not undertaking an
obligation to update these forward-looking statements, even though our situation
may change in the future, except as required under federal securities law.
We
qualify all of our forward-looking statements by these cautionary
statements.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
SEC
allows us to incorporate by reference information into this prospectus. This
means that we can disclose important information to you by referring you to
another document filed separately with the SEC. The information incorporated
by
reference is an important part of this prospectus, except for any information
superseded by information in this prospectus.
This
prospectus incorporates by reference the documents set forth below that we
have
filed (excluding any documents or portions of documents that are not "filed"
but
rather are "furnished") previously with the SEC (under our SEC File No.
000-23357, unless otherwise indicated):
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·
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our
Annual Report on Form 10-K for the year ended September 30, 2007;
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·
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our
proxy statement and related proxy materials in connection with our
March
20, 2008, annual meeting of shareholders filed with the SEC on February
5,
2008;
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·
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our
Current Report on Form 8-K filed with the SEC on February 11,
2008;
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·
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our
Current Report on Form 8-K filed with the SEC on July 7,
2008;
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·
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our
Quarterly Report on Form 10-Q for the quarter ended December 31,
2007;
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·
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our
Quarterly Report on Form 10-Q for the quarter ended March 31,
2008;
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·
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our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2008;
and
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·
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the
description of our common shares and preferred shares included under
the
column headed “BASi” in the section headed “COMPARISON OF SHAREHOLDER
RIGHTS” in the prospectus/proxy statement contained in our Registration
Statement on Form S-4 (File No. 333-99593) filed September 13, 2002,
as
amended.
|
We
also
incorporate by reference all documents that we file (excluding any documents
or
portions of documents that are not "filed" but rather are "furnished") under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and before the filing of a post-effective amendment that indicates
that the securities offered by this prospectus have been sold or that
deregisters the securities covered by this prospectus then remaining unsold.
The
most recent information that we file with the SEC automatically updates and
supersedes older information. The information contained in any such filing
will
be deemed to be a part of this prospectus, commencing on the date on which
the
document is filed.
We
will
provide to each person to whom a copy of this prospectus is delivered (including
any beneficial owner) a copy of any or all of the information that has been
incorporated by reference in the prospectus but not delivered with the
prospectus. This information will be provided upon written or oral request,
and
at no cost to the requester, made to Bioanalytical Systems Inc., 2701 Kent
Avenue, West Lafayette, Indiana 47906; Attention: BASi Investor Relations;
Phone: 765-463-4527. If the person requesting this information is a holder
of
our securities, we will also send the requester any exhibits that are
specifically incorporated by reference in that information.
USE
OF PROCEEDS
The
shares which may be sold under this prospectus will be sold for the respective
accounts of each of the selling shareholders. Accordingly, we will not realize
any proceeds from the sale of the shares. We may receive proceeds from the
purchase of our common shares by one or more of the selling shareholders upon
the exercise of options held by them if and when such options are exercised.
If
and to the extent that the options are exercised, we will use the proceeds
for
working capital and general corporate purposes. We will pay all expenses of
the
registration of the shares. See “Selling Shareholders” and “Plan of
Distribution.”
SELLING
SHAREHOLDERS
This
prospectus relates to our common shares that are being registered for reoffers
and resales by selling shareholders who have acquired or may acquire shares
pursuant to certain options to purchase common shares.
The
following table includes certain information with respect to the selling
shareholders and their “beneficial” ownership (within the meaning of Rule 13d-3
under the Exchange Act), of our common shares.
The
selling shareholders may, from time to time, resell all, a portion or none
of
our common shares covered by this prospectus. There is no assurance that any
of
the selling shareholders will sell any or all of the shares offered by them
under this registration statement.
The
address of each of the selling shareholders is c/o Bioanalytical Systems, Inc.,
2701 Kent Avenue, West Lafayette, Indiana 47906.
|
Name, Position
|
|
Number of
Shares
Beneficially
Owned (1)
|
|
Percentage
Beneficially
Owned
Before
Offering (1)
|
|
Number of
Shares to
be Offered
for the
Account of
the Selling
Shareholder (2)
|
|
Number
of
Shares
to be
Owned
After
Offering
|
|
Percentage
to be
Beneficially
Owned
After
Offering
|
|
|
Richard
M. Shepperd,
President
and Chief Executive
Officer
|
|
|
90,750
(3
|
)
|
|
1.8
|
%
|
|
275,000
|
|
|
15,750
|
|
|
0.3
|
%
|
|
Michael
R. Cox, Vice President
of
Finance and Administration
|
|
|
50,000
(4
|
)
|
|
1
|
%
|
|
80,000
|
|
|
0
|
|
|
0
|
%
|
|
Edward
M. Chait, Chief
Business
Officer
|
|
|
50,000
(5
|
)
|
|
1
|
%
|
|
80,000
|
|
|
0
|
|
|
0
|
%
|
(1)
The
amounts and percentages of common stock beneficially owned are reported on
the
basis of regulations of the SEC governing the determination of beneficial
ownership of securities. Under the Rules of the SEC, a person is deemed to
be a
“beneficial owner” of a security if that person has or shares “voting power”,
which included the power to vote or direct the voting of such security, or
“investment power” which includes the power to dispose of or to direct the
disposition of such security. A person is also deemed to be a beneficial owner
of any securities of which that person as a right to acquire beneficial
ownership within 60 days, including through the exercise of options or warrants.
Under these rules, more than one person may be deemed a beneficial owner of
the
same securities and a person may be deemed the beneficial owner of securities
as
to which he or she has no economic interest.
(2)
All
shares shown are shares that the selling shareholders have the right to acquire
pursuant to outstanding options.
(3)
Includes 75,000 shares that Mr. Shepperd has the right to acquire pursuant
to
options that are exercisable within 60 days of the date of this
prospectus.
(4)
All
shares shown are shares that Mr. Cox has the right to acquire pursuant to
options that are exercisable within 60 days of the date of this
prospectus.
(5)
All
shares shown are shares that Dr. Chait has the right to acquire pursuant to
options that are exercisable within 60 days of the date of this
prospectus.
PLAN
OF DISTRIBUTION
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|
·
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
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|
·
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block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
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|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
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|
·
|
privately
negotiated transactions;
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|
|
·
|
broker-dealers
may agree with the selling shareholder to sell a specified number
of such
shares at a stipulated price per
share;
|
|
|
·
|
a
combination of any such methods of sale;
and
|
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
selling shareholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (the "Securities Act"), if available, rather than under
this prospectus. The selling security holders are not obligated to, and there
is
no assurance that the selling shareholders will, sell all or any of the shares
we are registering. The selling shareholders may transfer, devise or gift such
shares by other means not described in this prospectus.
Broker-dealers
engaged by the selling shareholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling shareholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
selling shareholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved. Any profits on the
resale of common shares by a broker-dealer acting as principal might be deemed
to be underwriting discounts or commissions under the Securities Act. Discounts,
concessions, commissions and similar selling expenses, if any, attributable
to
the sale of shares will be borne by the selling shareholders. The selling
shareholders may agree to indemnify any agent, dealer or broker- dealer that
participates in transactions involving sales of the shares if liabilities are
imposed on that person under the Securities Act.
Any
selling shareholders may from time to time pledge or grant a security interest
in some or all of the common shares owned by him that he may acquire upon
exercise of his options and, if he defaults in the performance of any of his
secured obligations, the pledgees or secured parties may offer and sell the
pledged shares from time to time under this prospectus as it may be supplemented
from time to time, or under an amendment to this prospectus under Rule 424(b)(3)
or other applicable provision of the Securities Act amending the list of selling
shareholders to include the pledgee, transferee or other successors in interest
as selling shareholders under this prospectus.
The
anti-manipulation rules of Regulation M under the Securities Exchange Act of
1934, as amended (the "Exchange Act") may apply to sales of our common shares
and activities of the selling shareholders.
EXPERTS
The
Company’s financial statements with respect to each of the two fiscal years
ended September 30, 2007 that are incorporated in this prospectus by reference
from our Annual Report on Form 10-K for the year ended September 30, 2007
have been audited by Crowe Chizek and Company LLC, as stated in its report
incorporated herein by reference. The Company’s financial statements with
respect to the fiscal year ended September 30, 2005 that are incorporated in
this prospectus by reference from our Annual Report on Form 10-K for the year
ended September 30, 2007 have been audited by KPMG LLP, as stated in its
report incorporated herein by reference. Both of such firms are independent
registered public accounting firms, and we have incorporated our financial
statements for the respective years described above into this prospectus in
reliance upon the respective reports of such firms given upon their authority
as
experts in accounting and auditing.
We
have
filed a registration statement with the Securities and Exchange Commission
(“SEC” or the “Commission”) under the Securities Act of 1933, as amended, with
respect to our common shares offered by this prospectus. This prospectus is
part
of that registration statement and does not contain all of the information
included in the registration statement. For further information with respect
to
our common stock and us, you should refer to the registration statement, its
exhibits and the material incorporated by reference therein. Portions of the
exhibits have been omitted as permitted by the rules and regulations of the
Commission.
You
may
read and copy any materials that we file with the SEC at the SEC’s Public
Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain
information on the operation of the Public Reference Room by calling the SEC
at
1-800-SEC-0330. The SEC maintains an Internet site that contains reports, proxy
and information statements, and other information regarding issuers that file
electronically with the SEC (such as our Company) at
http://www.sec.gov
.
We
file
annual, quarterly and current reports, and proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any reports, statements or other information on file at the Commission’s public
reference room in Washington, D.C., and access them via the Internet site,
as
described above. You can request copies of those documents upon payment of
a
duplicating fee, by writing to the Commission.
DISCLOSURE
OF COMMISSION POSITION ON
INDEMNIFICATION
FOR SECURITIES LAW VIOLATIONS
We
may
indemnify our present and former directors, officers, employees, or agents
or
any person who may have served at our request as a director, officer, employee,
or agent of another corporation against liability incurred in any proceeding,
civil or criminal, in which any such person is made a party by reason of being
or having been in any such capacity, or arising out of his or her status as
such, if the individual acted in good faith and reasonably believed that
(a) the individual was acting in the best interests of the corporation, and
(b) if the challenged action was taken other than in the individual's
official capacity as an officer, director, employee or agent, the individual's
conduct was at least not opposed to the corporation's best interests, and,
if in
a criminal proceeding, either the individual had reasonable cause to believe
his
conduct was lawful or no reasonable cause to believe his conduct was unlawful.
Our articles of incorporation include certain provisions under which we may
be
obligated to indemnify our directors and officers (and advance their defense
costs) in respect of such claims under such circumstances, subject to certain
conditions. Further, we have insured our directors and officers against losses
arising from any claim against them as such for wrongful acts or omissions,
subject to certain limitations. Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to our directors
or
officers or persons controlling us pursuant to the foregoing provisions, we
have
been informed that in the opinion of the Securities and Exchange Commission
such
indemnification is against public policy as expressed in the Securities Act
and
is therefore unenforceable.
Bioanalytical
Systems, Inc.
435,000
Common Shares
PROSPECTUS
September
30, 2008
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 3.
Incorporation of Documents by Reference.
This
Registration Statement on Form S-8 incorporates by reference the documents
set
forth below that we have filed (excluding any documents or portions of documents
that are not "filed" but rather are "furnished") previously with the SEC (under
our SEC File No. 000-23357, unless otherwise indicated):
|
|
·
|
our
Annual Report on Form 10-K for the year ended September 30, 2007;
|
|
|
·
|
our
proxy statement and related proxy materials in connection with our
March
20, 2008, annual meeting of shareholders filed with the SEC on February
5,
2008;
|
|
|
·
|
our
Current Report on Form 8-K filed with the SEC on February 11,
2008;
|
|
|
·
|
our
Current Report on Form 8-K filed with the SEC on July 7,
2008;
|
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended December 31,
2007;
|
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2008;
and
|
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended June 30,
2008.
|
We
also
incorporate into this Registration Statement by reference all documents that
we
file (excluding any documents or portions of documents that are not "filed"
but
rather are "furnished") under Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the effectiveness of this Registration Statement and before the filing
of a post-effective amendment that indicates that the securities covered by
this
Registration Statement have been sold or that deregisters the securities then
remaining unsold. The most recent information that we file with the SEC
automatically updates and supersedes older information. The information
contained in any such filing will be deemed to be a part of this Registration
Statement, commencing on the date on which the document is filed.
Item 4.
Description of Securities.
N/A.
Item 5.
Interests of Named Experts and Counsel.
N/A.
Item 6.
Indemnification of Officers and Directors.
Indiana
Business Corporation Law ("IBCL")
In
general, Chapter 37 of the IBCL provides for mandatory director
indemnification and optional director indemnification.
1.
Mandatory
.
Unless
otherwise limited by its Articles of
Incorporation,
an Indiana corporation is required to indemnify a director who was wholly
successful in the defense of any proceeding to which the director
was
party
because the director is or was a director of the corporation. The
corporation
is required to pay all reasonable expenses incurred by the director
in
connection with the proceeding.
2.
Optional.
Indiana
law permits indemnification of directors
against
liabilities and expenses incurred in proceedings if the individual
acted
in
good
faith and reasonably believed (a) in the case of conduct in his
official
capacity
with the corporation, that his conduct was in its best interests,
and
(b)
in
all other cases, that his conduct was at least not opposed to its
best
interests.
In the case of any criminal proceeding, the individual must either
have
had
reasonable cause to believe the conduct was lawful or had no
reasonable
cause
to
believe the conduct was unlawful. Any determination as to whether,
and
to
what
extent, an Indiana corporation may indemnify a director must be made
(x)
by
a
majority vote of a quorum of the directors not a party to the
proceeding,
(y)
by
special legal counsel, or (z) by the shareholders.
3.
Expenses.
An
Indiana corporation may advance expenses to a
director
if it receives a statement from the director that (a) he believes
the
required
standard of conduct for optional indemnification has been met, (b)
the
director
undertakes unconditionally to repay the corporation for the advances
if
it
is
later determined the standard has not been met, and (c) there are no
facts
known
which would preclude indemnification.
4.
Officer
Indemnification.
Unless
otherwise limited in an Indiana
corporation's
Articles of Incorporation, an officer is entitled to
indemnification
under the circumstances for mandatory indemnification set forth
above
to
the same extent as a director. Additionally, an Indiana corporation
may
also
provide further indemnification for its officers through its articles,
its
by-laws,
resolution by its directors, or contract.
Articles
of Incorporation
Article
V
of the Second Amended and Restated Articles of Incorporation of the Company
provides for indemnification of officers and directors against all liability
and
reasonable expenses incurred by such person on account of or arising out of
that
person's relationship to the Company, provided that the party to be indemnified
satisfies the requirements of Chapter 37 of the IBCL.
Insurance
Officers
and directors of the Company are presently covered by insurance which (with
certain exceptions and certain limitations) indemnifies them against any losses
or liabilities arising from any alleged wrongful act (as defined in the policy),
including breach of duty, neglect, error, misstatement, misleading statements,
omissions or other acts done or wrongfully attempted.
Item 7.
Exemption from Registration Claimed.
N/A.
Item 8.
Exhibits.
The
following exhibits are filed with this registration statement.
|
Number
|
|
Description
|
|
4.1
|
|
Bioanalytical
Systems, Inc. 2008 Stock Option Plan
|
|
4.2
|
|
Letter
agreement dated May 18, 2007, between the Company and Richard M.
Shepperd
evidencing grant of options with respect to 275,000 common
shares
|
|
4.3
|
|
Letter
agreement dated April 1, 2004, between the Company and Michael R.
Cox
evidencing grant of options with respect to 25,000 common shares
(incorporated by reference to Exhibit 10.3 to Form 10-Q for the quarter
ended March 31, 2004)
|
|
4.4
|
|
Letter
agreement dated August 1, 2005, between the Company and Dr. Edward
M.
Chait evidencing grant of options with respect to 25,000 common shares
(incorporated by reference to Exhibit 10.24 to Form 10-K for the
year
ended September 30, 1995)
|
|
4.5
|
|
Letter
agreement dated February 8, 2000, between the Company and Andrew
N. Brown
evidencing grant of options with respect to 5,000 common
shares
|
|
4.6
|
|
Letter
agreement dated July 22, 2005, between the Company and Sue Faulconbridge
evidencing grant of options with respect to 3,000 common
shares
|
|
4.7
|
|
Letter
agreement dated December 11, 1998, between the Company and Bryan
Green
evidencing grant of options with respect to 2,000 common
shares
|
|
4.8
|
|
Letter
agreement dated December 7, 2007, between the Company and Mark Wareing
evidencing grant of options with respect to 10,000 common
shares
|
|
4.9
|
|
Letter
agreement dated July 22, 2005, between the Company and Dr. Simon
Hemmings
evidencing grant of options with respect to 3,000 common
shares
|
|
5.1
|
|
Opinion
of Ice Miller LLP
|
|
23.1
|
|
Consent
of Ice Miller LLP (contained in Exhibit 5.1)
|
|
23.2
|
|
Consent
of Crowe Horwath, LLP
|
|
23.3
|
|
Consent
of KPMG LLP
|
|
24.4
|
|
Power
of Attorney (set forth on Signature
Page)
|
Item 9.
Undertakings.
(a)
The
undersigned registrant hereby undertakes:
i.
To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
ii.
To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement.
iii.
To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided
however, that Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
2.
That,
for
the purpose of determining any liability under the Securities Act of 1933,
each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
3.
To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
4.
That,
for
the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
i.
If
the
registrant is relying on Rule 430B (§230.430B of this chapter):
A.
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3)shall be deemed
to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
B.
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement
as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter,
such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall
be
deemed to be the initial bona fide offering thereof. Provided, however, that
no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date;
or
ii.
If
the
registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed
in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify
any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such date of first use.
5.
That,
for
the purpose of determining liability of the registrant under the Securities
Act
of 1933 to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
i.
Any
preliminary prospectus or prospectus of the undersigned registrant relating
to
the offering required to be filed pursuant to Rule 424;
ii.
Any
free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
iii.
The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
iv.
Any
other
communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b)
Insofar as indemnification for liabilities arising under the Securities Act
of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of
such issue.
(c)
The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall
be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be
the initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Indianapolis, State of Indiana, on September 30,
2008.
|
|
|
|
|
|
BIOANALYTICAL
SYSTEMS, INC.
|
|
|
|
|
|
By:
|
/s/
Richard
M. Shepperd
|
|
|
Richard
M.
Shepperd, President and Chief Executive
Officer
|
Each
of
the undersigned do hereby appoint Richard M. Shepperd and Michael R. Cox his
true and lawful attorney to execute on his behalf any and all amendments to
this
Registration Statement on Form S-8 and to file the same with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission; each of such persons shall have the power to act hereunder
with or without the other.
In
accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates stated.
|
Signatures
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/
Richard M. Shepperd
|
|
President,
Chief Executive Officer and
|
|
September 30,
2008
|
|
Richard
M. Shepperd
|
|
Director
(principal executive officer)
|
|
|
|
|
|
|
|
|
|
/s/
Michael R. Cox
|
|
Vice
President, Finance &
|
|
September 30,
2008
|
|
Michael
R. Cox
|
|
Administration,
Chief Financial Officer
and
Treasurer (principal financial and accounting officer)
|
|
|
|
|
|
|
|
|
|
/s/
William E. Baitinger
|
|
Director
|
|
September 30,
2008
|
|
William
E. Baitinger
|
|
|
|
|
|
|
|
|
|
|
|
/s/
David W. Crabb
|
|
Director
|
|
September 30,
2008
|
|
David
W. Crabb
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Leslie B. Daniels
|
|
Director
|
|
September 30,
2008
|
|
Leslie
B. Daniels
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Larry S. Boulet
|
|
Director
|
|
September 30,
2008
|
|
Larry
S. Boulet
|
|
|
|
|
INDEX
TO EXHIBITS
|
Number
|
|
Description
|
|
4.1
|
|
Bioanalytical
Systems, Inc. 2008 Stock Option Plan
|
|
|
|
|
|
4.2
|
|
Letter
agreement dated May 18, 2007, between the Company and Richard M.
Shepperd
evidencing grant of options with respect to 275,000 common
shares
|
|
|
|
|
|
4.3
|
|
Letter
agreement dated April 1, 2004, between the Company and Michael R.
Cox
evidencing grant of options with respect to 25,000 common shares
(incorporated by reference to Exhibit 10.3 to Form 10-Q for the quarter
ended March 31, 2004)
|
|
|
|
|
|
4.4
|
|
Letter
agreement dated August 1, 2005, between the Company and Dr. Edward
M.
Chait evidencing grant of options with respect to 25,000 common shares
(incorporated by reference to Exhibit 10.24 to Form 10-K for the
year
ended September 30, 1995)
|
|
|
|
|
|
4.5
|
|
Letter
agreement dated February 8, 2000, between the Company and Andrew
N. Brown
evidencing grant of options with respect to 5,000 common
shares
|
|
|
|
|
|
4.6
|
|
Letter
agreement dated July 22, 2005, between the Company and Sue Faulconbridge
evidencing grant of options with respect to 3,000 common
shares
|
|
|
|
|
|
4.7
|
|
Letter
agreement dated December 11, 1998, between the Company and Bryan
Green
evidencing grant of options with respect to 2,000 common
shares
|
|
|
|
|
|
4.8
|
|
Letter
agreement dated December 7, 2007, between the Company and Mark Wareing
evidencing grant of options with respect to 10,000 common
shares
|
|
|
|
|
|
4.9
|
|
Letter
agreement dated July 22, 2005, between the Company and Dr. Simon
Hemmings
evidencing grant of options with respect to 3,000 common
shares
|
|
|
|
|
|
5.1
|
|
Opinion
of Ice Miller LLP
|
|
|
|
|
|
23.1
|
|
Consent
of Ice Miller LLP (contained in Exhibit 5.1)
|
|
|
|
|
|
23.2
|
|
Consent
of Crowe Horwath, LLP
|
|
|
|
|
|
23.3
|
|
Consent
of KPMG LLP
|
|
|
|
|
|
24.4
|
|
Power
of Attorney (set forth on Signature
Page)
|
BIOANALYTICAL
SYSTEMS, INC.
2008
STOCK OPTION PLAN
|
|
1.
|
Establishment/Plan
Purpose
.
Bioanalytical Systems, Inc., an Indiana corporation, hereby establishes
an
equity-based incentive compensation plan to be known as the Bioanalytical
Systems, Inc. 2008 Stock Option Plan ("Plan") and to be effective
as of
the Effective Date provided for herein. The purpose of the Plan is
to
promote the long-term interests of the Company and its shareholders
by
providing a means for attracting and retaining officers, directors
and key
employees of the Company and its Affiliates.
|
|
|
2.
|
Definitions/Rules
of Construction
.
|
a.
The
following definitions are applicable to the Plan:
"
Affiliate
"
means
any "parent corporation" or "subsidiary corporation" of the Company as such
terms are defined in Code Sections 424(e) and (f),
respectively.
"
Award
"
means
the grant by the Committee of Incentive Stock Options or Non-Qualified Stock
Options or any combination thereof, as provided in the Plan.
"
Award
Agreement
"
means
the written agreement setting forth the terms and provisions applicable to
each
Award granted under the Plan.
"
Beneficial
Owner
"
shall
have the meaning set forth in Rule 13d-3 under the Exchange Act.
"
Board
"
means
the Board of Directors of the Company.
"
Cause
"
means
(a) a Participant’s dishonesty, fraud or misconduct with respect to the business
or affairs of the Company or any Affiliate which materially and adversely
affects the operations or reputation of the Company or any Affiliate (monetarily
or otherwise); (b) a Participant’s conviction of a felony crime or a crime
involving moral turpitude or entry of a plea of nolo contendre thereof; or
(c) a
Participant’s violation of the Company’s Code of Conduct.
"
Change
in Control
"
means
the occurrence of any one of the following events:
i.
any
Person, other than an Existing Substantial Shareholder, becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing a
majority of the combined voting power of the Company's then outstanding
securities (assuming conversion of all outstanding non-voting securities into
voting securities and the exercise of all outstanding options or other
convertible securities);
ii.
the
following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the Effective Date,
constitute the Board and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election
contest, including but not limited to, a consent solicitation, relating to
the
election of directors of the Company) whose appointment or election by the
Board
or nomination for election by the Company's shareholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the Effective Date or whose appointment,
election or nomination for election was previously so approved or
recommended;
iii.
the
consummation of a merger or consolidation of the Company or any direct or
indirect subsidiary of the Company with any other corporation (other than with
an Existing Substantial Shareholder or any of its affiliates), other than (x)
a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior to such merger or consolidation continuing
to represent, either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof, a majority of the
combined voting power of the securities of the Company or such surviving entity
or any parent thereof outstanding immediately after such merger or
consolidation, or (y) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person
is
or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company representing a majority of the combined voting power of the Company's
then outstanding securities; or
iv.
the
shareholders of the Company approve a plan of complete liquidation or
dissolution of the Company or there is consummated an agreement for the sale
or
disposition by the Company of all or substantially all of the Company's assets,
other than a sale or disposition by the Company of all or substantially all
of
the Company's assets to an entity controlled by an Existing Substantial
Shareholder or any of its affiliates, or to an entity a majority of the combined
voting power of the voting securities of which is owned by substantially all
of
the shareholders of the Company immediately prior to such sale in substantially
the same proportions as their ownership of the Company immediately prior to
such
sale.
"
Code
"
means
the Internal Revenue Code of 1986, as amended, and its implementing
regulations.
"
Committee
"
means
the Compensation Committee of the Board of Directors.
"
Company
"
means
Bioanalytical Systems, Inc., an Indiana corporation.
"
Director
"
means
any individual who is a member of the Board.
"
Disability
"
means
that a Participant meets one of the following requirements: (i) the Participant
is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, or (ii) the Participant is, by reason of medically determinable
physical or mental impairment that can be expected to result in death or can
be
expected to last for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than 3 months under an
accident and health plan covering employees of the Company.
"
Effective
Date
"
means
the date that the Plan becomes effective as provided in
Section 18.
"
Employee
"
means
any person, including an officer or Director, who is employed by the Company
or
any Affiliate.
"
Exchange
Act
"
means
the Securities Exchange Act of 1934, as amended.
"
Exercise
Price
"
means
the price per Share at which the Shares subject to an Option may be purchased
upon exercise of the Option.
"
Existing
Substantial Shareholder
"
means
any Person that alone or together with its affiliates is the Beneficial Owner
of
more than 15% of the Outstanding Common Stock as of the Effective Date.
"
Fair
Market Value
"
means,
with respect to a Share as of a particular date, the per share closing price
for
the Shares on the trading day immediately before such date, as reported by
the
principal exchange or market over which the Shares are then listed or regularly
traded. If the price of a Share is not so reported, Fair Market Value shall
be
determined, in good faith, by the Committee in accordance with such procedures
as the Committee shall from time to time prescribe.
"
Incentive
Stock Option
"
means
an option to purchase Shares granted by the Committee pursuant to the terms
of
the Plan, which option is intended to qualify under Code
Section 422.
"
Non-Qualified
Stock Option
"
means
an option to purchase Shares granted by the Committee pursuant to the terms
of
the Plan, which option is not intended to qualify under Code
Section 422.
"
Option
"
means
an Incentive Stock Option or a Non-Qualified Stock Option.
"
Participant
"
means
any individual selected by the Committee to receive an Award.
"
Person
"
shall
have the meaning given in Section 3(a)(9) of the Exchange Act and used in
Sections 13(d) and 14(d) thereof, except that such term shall not include (i)
the Company or any subsidiary of the Company, (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any of
its
affiliates, (iii) an underwriter temporarily holding securities pursuant to
an
offering of such securities or (iv) a corporation or other business entity
owned, directly or indirectly, by substantially all of the shareholders of
the
Company in substantially the same proportions as their ownership of stock of
the
Company.
"
Plan
"
means
this Bioanalytical Systems, Inc. 2008 Stock Option Plan.
"
Retirement
"
means,
in the case of an Employee, a Separation from Service for reasons other than
Cause on or after the date on which the Employee attains age 60.
"
Rule
16b-3
"
means
Rule 16b-3 under the Exchange Act and any future rule or regulation amending,
supplementing, or superseding such rule.
"
Section
16 Person
"
means a
person subject to potential liability under Section 16(b) of the Exchange Act
with respect to transactions that involve equity securities of the
Company.
"
Securities
Act
"
means
the Securities Act of 1933, as amended.
"
Separation
from Service
"
or
"
Separates
from Service
"
shall
mean death, Disability, Retirement, or other termination of employment with
the
Company.
"
Shares
"
means
the common shares of the Company.
"
10%
Shareholder
"
has the
meaning set forth in Section 9.
b.
The
following rules shall govern in the interpretation of the Plan:
i.
Except
to
the extent preempted by United States federal law or as otherwise expressly
provided herein, the Plan and all Award Agreements shall be interpreted in
accordance with and governed by the internal laws of the State of Indiana
without giving effect to any choice or conflict of law provisions, principles,
or rules.
ii.
The
Plan
and all Awards are intended to comply with an exemption from the requirements
of
Code Section 409A.
iii.
Any
reference herein to a provision of law, regulation, or rule shall be deemed
to
include a reference to the successor of such law, regulation, or
rule.
iv.
To
the
extent consistent with the context, any masculine term shall include the
feminine, and
vice
versa,
and
the
singular shall include the plural, and
vice
versa.
v.
If
any
provision of the Plan shall be held illegal or invalid for any reason, the
illegality or invalidity of that provision shall not affect the remaining parts
of the Plan, and the Plan shall be interpreted and enforced as if the illegal
or
invalid provision had never been included herein.
vi.
The
grant
of Awards and issuance of Shares hereunder shall be subject to all applicable
statutes, laws, rules, and regulations and to such approvals
and requirements as may be required from time to time by any governmental
authority or securities exchange or market on which the Shares are then listed
or traded.
vii.
The
descriptive headings and sections of the Plan are provided for convenience
of
reference only and shall not serve as a basis for interpretation of the
Plan.
3.
Administration
.
a.
The
Committee
.
The
Committee shall administer the Plan and, subject to the provisions of the Plan
and applicable law, may exercise its discretion in performing its administrative
duties. The Committee shall consist of not fewer than three (3) Directors,
and
Committee action shall require the affirmative vote of a majority of its
members. The members of the Committee shall be appointed by, and shall serve
at
the pleasure of, the Board. It is intended that the Committee be composed
solely of Directors who both are non-employee directors under Rule 16b-3 and
"independent" as defined by the requirements of any stock exchange or quotation
system on which the Company's common stock is listed or quoted. Failure of
the
Committee to be so composed shall not result in the cancellation, termination,
expiration, or lapse of any Award.
b.
Authority
of the Committee
.
Except
as limited by law or by the Articles of Incorporation or By-Laws of the Company,
and subject to the provisions of the Plan, the Committee shall have full power
and discretion to: select the Employees who shall participate in the Plan;
determine the sizes and types of Awards; determine the terms and conditions
of Awards in a manner consistent with the Plan; construe and interpret the
Plan, all Award Agreements, and any other agreements or instruments entered
into
under the Plan; establish, amend, or waive rules and regulations for the Plan's
administration; and amend the terms and conditions of any outstanding Award
and
applicable Award Agreement to the extent that such terms and conditions are
within the discretion of the Committee. Further, the Committee shall make all
other determinations that may be necessary or advisable for the administration
of the Plan. Each Award shall be evidenced by a written Award Agreement between
the Company and the Participant and shall contain such terms and conditions
as may be established by the Committee consistent with the provisions of the
Plan. Notwithstanding the preceding provisions, the Committee shall not have
any
authority to take any action that would cause an Option to become subject to
Code Section 409A. Except as limited by applicable law or the Plan, the
Committee may use its discretion to the maximum extent that it deems appropriate
in administering the Plan.
c.
Delegation
by the Committee
.
The
Committee may delegate all or any part of its authority and powers under this
Plan to one or more Directors or officers of the Company; provided, however,
the
Committee may not delegate its authority and powers (i) with respect to grants
to Section 16 Persons, or (ii) in a way that would jeopardize the Plan' s
satisfaction of Rule 16b-3.
d.
Decisions
Binding
.
All
determinations and decisions made by the Committee, the Board, and any delegate
of the Committee pursuant to this Section shall be final, conclusive, and
binding on all persons, including the Company and Participants.
4.
Participants
.
Only
those persons who are Employees or Directors of the Company shall be eligible
to
participate in the Plan. The Committee shall determine from time to time the
particular Employees or Directors of the Company who shall be eligible to
participate in the Plan and the extent of their participation
therein.
5.
Shares
Subject to Plan, Limitations on Grants and Exercise
Price
.
Subject
to adjustment by the operation of Section 11 hereof:
a.
The
maximum number of Shares that may be issued with respect to Awards made under
the Plan is 500,000 Shares. In the event any outstanding Option under the Plan
expires or is terminated for any reason prior to the end of the period during
which Options may be granted, the shares allocable to the unexercised portion
of
such Option may again be subject to an Option under the Plan.
b.
The
Shares with respect to which Awards may be made under the Plan may either be
authorized and unissued shares or issued shares heretofore or hereafter
reacquired and held as treasury shares. Any Award that expires, terminates
or is
surrendered for cancellation may be subject to new Awards under the Plan with
respect to the number of Shares as to which a termination or forfeiture has
occurred. Any option issued under the Plan surrendered in order to effect
exercise of another option in accordance with Paragraph 7 (c) below shall be
deemed to be an exercised option and will not be available for future option
grants under this Plan.
c.
The
Exercise Price for any Award made under the Plan may not be less than the Fair
Market Value of the Shares as of the date of the award.
d.
No
Participant may be granted Incentive Stock Options under this Plan that would
result in Shares with an aggregate Fair Market Value (determined as of the
date
the Option is granted) of more than One Hundred Thousand Dollars ($100,000)
first becoming exercisable in any one calendar year. To the extent that a
purported Incentive Stock Option would violate the limitation specified in
the
preceding sentence, the portion of the Option in excess of such limitation
shall
be deemed a Non-Qualified Stock Option.
e.
Notwithstanding
the preceding provisions, if the Company or an Affiliate consummates a
transaction described in Code Section 424(a) (e.g., the acquisition of property
or stock from an unrelated corporation), individuals who become Employees or
Directors on account of such transaction may be granted Options in substitution
for options granted by such former employer or recipient of services. If such
substitute Options are granted, the Committee, in its sole discretion and
consistent with Code Section 424(a) and the requirements of Code Section 409A,
may determine that such substitute Options shall have an Exercise Price less
than one hundred (100%) of the Fair Market Value of the Shares to which the
Options relate determined as of the dates of grant. In carrying out the
provisions of this Section, the Committee shall apply the principles contained
in Section 11.
6.
General
Terms and Conditions of Options
.
The
Committee will have full and complete authority and discretion, except as
expressly limited by the Plan, to grant Options and to prescribe the terms
and
conditions (which need not be identical among Participants) of the Options.
Each
Option will be evidenced by an Award Agreement that will specify: (a) the
Exercise Price, (b) the number of Shares subject to the Option,
(c) the expiration date of the Option, (d) the manner, time and rate
(cumulative or otherwise) of exercise of the Option, (e) the restrictions,
if any, to be placed upon the Option or upon Shares that may be issued upon
exercise of the Option, (f) the conditions, if any, under which a
Participant may transfer or assign Options, and (g) any other terms and
conditions as the Committee, in its sole discretion, may determine. The
Committee may, as a condition of granting any Option, require that a Participant
agree to surrender for cancellation one or more Options previously granted to
such Participant.
7.
Exercise
of Options
.
Subject
to the provisions of the Plan and the applicable Award Agreement, a Participant
may exercise an Option, in whole or in part, at any time prior to the
termination of the Option, by giving written notice to the Company of exercise
on a form provided by the Committee (if available). Such notice shall specify
the number of Shares subject to the Option to be purchased and shall be
accompanied by payment in full of the total Exercise Price by cash or check
or
such other form of payment as the Company may accept. If permitted by the
Committee or the applicable the Award Agreement, payment in full or in part
may
also be made by:
a.
Delivering
Shares already owned by the Participant for more than six (6) months and having
a total Fair Market Value on the date of such delivery equal to the total
Exercise Price;
b.
The
certification of ownership of Shares owned by the Participant to the
satisfaction of the Committee for later delivery to the Company as specified
by
the Committee;
c.
Delivering,
if the Participant may do so without violating Section 16(b) of the Exchange
Act, by surrendering sufficient vested options based on the difference between
the exercise price and the Fair Market Value at the time of exercise of the
Shares to equal the exercise price of the Shares to which the Option is being
exercised;
d.
Any
other
method permitted by the Committee in the Award Agreement; or
e. Any
combination of the foregoing.
No
Shares
shall be issued until full payment therefore has been made. A Participant shall
have all of the rights of a shareholder of the Company holding the class of
Shares subject to such Option (including, if applicable, the right to vote
the
shares and the right to receive dividends) when the Participant has given
written notice of exercise, has paid the total Exercise Price, and such Shares
have been recorded on the Company's official shareholder records (or the records
of its transfer agents or registrars) as having been issued and transferred
to
the Participant.
8.
Termination
of Options
.
Unless
otherwise specifically provided by the Committee in the Award Agreement or
any
amendment thereto, Options will terminate as provided in this Section.
a.
Unless
sooner terminated under the provisions of this Section and notwithstanding
the
provisions of Subsection (b) or (d) below of this Section 8, Options will expire
not more than five (5) years from the date of grant if the Participant is a
10%
Shareholder, and not more than ten (10) years from the date of grant if the
Participant is not a 10% Shareholder.
b.
If
the
Participant's Separation from Service (without Cause) occurs by reason of
Retirement or Disability, the Participant may exercise all outstanding Options
with respect to Shares for which it could have been exercised on the effective
date of the Participant's Retirement within the period of three months
immediately succeeding the Participant's Retirement, or if by reason of
Disability, within twelve (12) months after termination of employment due to
Disability.
c.
If
the
Participant's Separation from Service (with or without Cause) is due to any
reason other than Retirement or Disability, all rights under any Options granted
to the Participant will terminate immediately upon the Participant's Separation
from Service.
d.
In
the
event the Participant's Separation from Service is due to death, the
Participant's beneficiary or estate, if no beneficiary, may exercise outstanding
Options to the extent that the Participant was entitled to exercise the Options
at the date of his death, but only within the period of twelve (12) months
from
the date of the Participant's death.
9.
Special
Rules Applicable to Incentive Stock Options
.
a.
Incentive
Stock Options may be granted only to Participants who are Employees. Any
provisions of the Plan to the contrary notwithstanding, (a) no Incentive
Stock Option will be granted more than ten (10) years from the earlier of the
date the Plan is adopted by the Board or approved by the Company's Shareholders,
(b) no Incentive Stock Option will be exercisable more than ten (10) years
from the date the Incentive Stock Option is granted, (c) the Exercise Price
of any Incentive Stock Option will not be less than the Fair Market Value per
Share on the date such Incentive Stock Option is granted, (d) any Incentive
Stock Option will not be transferable by the Participant to whom such Incentive
Stock Option is granted other than by will or the laws of descent and
distribution and will be exercisable during the Participant's lifetime only
by
such Participant, (e) no Incentive Stock Option will be granted that would
permit a Participant to acquire, through the exercise of Incentive Stock Options
in any calendar year, under all plans of the Company and its Affiliates, Shares
having an aggregate Fair Market Value (determined as of the time any Incentive
Stock Option is granted) in excess of $100,000 (determined by assuming that
the
Participant will exercise each Incentive Stock Option on the date that such
Option first becomes exercisable), and (f) no Incentive Stock Option may be
exercised more than three (3) months after the Participant's Separation from
Service for reasons due to Retirement, or more than one (1) year after the
Participant's Separation from Service due to the Disability or the death of
the
Participant. Notwithstanding the foregoing,
no
Incentive Stock Option shall be granted under the Plan to any Employee of the
Company who, at the time such Incentive Stock Option is granted, owns shares
possessing more than ten percent (10%) of the total combined voting power of
all
classes of shares of the Company or of any parent or subsidiary corporation
of
the Company or any parent or subsidiary corporation of any of the foregoing
(such employee being hereinafter referred to as a "10% Shareholder"), except
as
provided below. For purposes of this Section 9, shares owned, directly or
indirectly, by or for a corporation, partnership, estate, or trust shall be
considered as being owned proportionately by or for its shareholders, partners,
or beneficiaries. The percentage limitations of this Section 9 shall not apply,
however, if, at the time such Incentive Stock Option is granted, the Exercise
Price is at least one hundred ten percent (110%) of the Fair Market Value of
the
Shares subject to the Incentive Stock Option and such Option by its terms is
not
exercisable after the expiration of five (5) years from the date such Option
is
granted.
b.
Notwithstanding
any other provisions of the Plan, if for any reason an Option granted under
the
Plan that is intended to be an Incentive Stock Option fails to qualify as an
Incentive Stock Option, such Option will be deemed to be a Non-Qualified Stock
Option, and such Option will be deemed to be fully authorized and validly issued
under the Plan.
10.
Restrictive
Covenants
.
In its
discretion, the Committee may condition the grant of any Award under the Plan
upon the Participant agreeing to covenants in favor of the Company and/or any
Affiliate (including, without limitation, covenants not to compete, not to
solicit employees and customers, and not to disclose confidential information)
that may have effect following the termination of employment with the Company
or
any Affiliate, and after the Award has been exercised, including, without
limitation, the requirement to disgorge any profit, gain or other benefit
received upon exercise of the Award prior to any breach of any covenant.
11.
Adjustments
Upon Changes in Capitalization
.
In the
event of any change in the outstanding Shares subsequent to the effective date
of the Plan by reason of any reorganization, recapitalization, stock split,
reverse stock split, spin-off, stock dividend, combination or exchange of Shares
or other securities of the Company, any change in the corporate structure or
Shares of the Company or other similar corporate transaction or event, the
maximum aggregate number and class of Shares as to which Awards may be granted
under the Plan and the number and class of Shares and the Exercise Price of
any
outstanding Options will be appropriately adjusted by the Committee to prevent
the dilution or diminution of Awards. The Committee's determination with respect
to any adjustments will be conclusive. Any fractional shares so determined
will
be rounded to the nearest whole number of shares.
12.
Assignments
and Transfers
.
Except
as otherwise expressly authorized by the Committee in the Award Agreement or
any
amendment thereto during the lifetime of a Participant, no Award nor any right
or interest of a Participant in any Award under the Plan may be assigned,
encumbered or transferred otherwise than by will or the laws of descent and
distribution.
13.
Rights
Under the Plan
.
No
officer, Employee, Director or other person will have a right to be selected
as
a Participant nor, having been so selected, to be selected again as a
Participant, and no officer, Employee, Director or other person will have any
claim or right to be granted an Award under the Plan or under any other
incentive or similar plan of the Company or any Affiliate. Neither the Plan
nor
any action taken under the Plan will be construed as giving any Employee any
right to be retained in the employ of the Company or any Affiliate.
14.
Delivery
and Registration of Shares
.
The
Company's obligation to deliver Shares with respect to an Award will, if the
Committee requests, be conditioned upon the receipt of a representation as
to
the investment intention of the Participant to whom such Shares are to be
delivered, in such form as the Committee will determine to be necessary or
advisable to comply with the provisions of the Securities Act or any other
applicable federal or state securities laws. It may be provided that any
representation requirement will become inoperative upon a registration of the
Shares or other action eliminating the necessity of the representation under
the
Securities Act or other state securities laws. The Company will not be required
to deliver any Shares under the Plan prior to (a) the admission of such Shares
to listing on any stock exchange or system on which Shares may then be listed,
and (b) the completion of any registration or other qualification of the Shares
under any state or federal law, rule or regulation, as the Company determines
to
be necessary or advisable.
15.
Withholding
Tax
.
To the
extent required by law in effect at the time any Options are exercised, the
Company has the right and power to deduct or withhold, or require the
Participant to remit to the Company, an amount sufficient to satisfy all
applicable tax withholding requirements. The Committee, in its sole discretion
and pursuant to such procedures as it may specify from time to time, may permit
or require a Participant to satisfy all or part of the tax withholding
obligations in connection with an Award by (a) having the Company withhold
otherwise deliverable Shares, or (b) delivering to the Company Shares already
owned for a period of at least six months and, in each case, having a value
equal to the amount required to be withheld. The amount of the withholding
requirement will be deemed to include any amount that the Committee determines,
not to exceed the amount determined by using the maximum federal, state or
local
marginal income tax rates applicable to the Participant with respect to the
Award on the date that the amount of tax to be withheld is to be determined
for
these purposes. For these purposes, the value of the Shares to be withheld
or
delivered will be equal to the Fair Market Value as of the date that the taxes
are required to be withheld.
16.
Termination,
Amendment and Modification of Plan
.
The
Board may at any time terminate, and may at any time and from time to time
and
in any respect amend or modify the Plan; provided, however, that to the extent
necessary and desirable to comply with Rule 16b-3 under the Exchange Act or
Code Section 422 (or any other applicable law or regulation, including
requirements of any stock exchange or quotation system on which the Company's
common stock is listed or quoted), shareholder approval of any Plan amendment
will be obtained in the manner and to the degree as is required by the
applicable law or regulation; and provided further, that no termination,
amendment or modification of the Plan will in any manner affect any Award
theretofore granted pursuant to the Plan without the consent of the Participant
to whom the Award was granted or the transferee of the Award. The Plan shall
be
binding upon any successor to substantially all the assets of the Company.
However, no Options shall be granted hereunder upon termination of the
Plan.
17.
Repricing
.
Notwithstanding any provision in the Plan to the contrary and except for
adjustments made pursuant to Section 11 of the Plan (relating to the adjustment
of Shares and related Awards upon certain changes in capitalization), the
Exercise Price of any outstanding Option granted under the Plan may not be
decreased after the date of grant nor may any outstanding Option granted under
the Plan be surrendered to the Company as consideration for the grant of a
new
Option with a lower Exercise Price.
18.
Effective
Date and Term of Plan
.
The
Plan will become effective upon approval by the holders of a majority of the
issued and outstanding Shares of each class of the voting Shares of the Company
voting in person or by proxy at the duly held shareholder's meeting, provided
that the Plan shall become effective only if approved within twelve (12) months
before or after the Plan is adopted. The Plan shall terminate on the ten (10)
year anniversary of the Effective Date.
19.
Securities
Law
.
No
Option shall be granted, and no shares issued in connection with any Award
unless the grant of the Option and the issuance and delivery of shares or cash
pursuant to the Award, complies with all relevant provisions of state and
federal law, including without limitation, the Securities Act, the Exchange
Act,
the rules and regulations promulgated thereunder, and the requirements of any
market system or stock exchange upon which the shares may then be listed or
traded. Participant shall not offer, sell or otherwise dispose of any Option
in
any manner that would: (a) require the Company to file any registration
statement with the Securities and Exchange Commission (or any similar filing
under state law), or to amend or supplement such filing or (b) violate or cause
the Company to violate the Securities Act, or any other state or federal
law.
20.
Mistake
of Fact
.
Any
mistake of fact or misstatement of facts shall be corrected when it becomes
known by a proper adjustment to an Award or Award Agreement.
21.
Evidence
.
Evidence required of anyone under the Plan may be by certificate, affidavit,
document, or other information which the person relying thereon considers
pertinent and reliable, and signed, made, or presented by the proper party
or
parties.
22.
Notices
.
Any
notice or document required to be given to or filed with the Committee will
be
properly given or filed if hand delivered (and a delivery receipt is received)
or mailed by certified mail, return receipt requested, postage paid, to the
Committee.
23.
No
Company Obligation
.
Unless
required by applicable law, the Company, an Affiliate, the Board, and the
Committee shall not have any duty or obligation to affirmatively disclose
material information to a record or beneficial holder of Shares or an Award,
and
such holder shall have no right to be advised of any material information
regarding the Company or any Affiliate at any time prior to, upon, or in
connection with the receipt, exercise, or distribution of an Award. In
addition, the Company, an Affiliate, the Board, the Committee, and any
attorneys, accountants, advisors, or agents for any of the foregoing shall
not
provide any advice, counsel, or recommendation to any Participant with respect
to, without limitation, any Award, any exercise of an Option, or any tax
consequences relating to an Award.
24.
Liability
and Indemnification
.
No
member of the Board, the Committee, or any officer or employee of the Company
or
any Affiliate shall be personally liable for any action, failure to act,
decision, or determination made in good faith in connection with this Plan.
By
participating in the Plan, each Participant agrees to release and hold harmless
the Company and its Affiliates (and their respective directors, officers, and
employees) and the Committee from and against any tax liability, including,
but
not limited to, interest and penalties, incurred by the Participant in
connection with his receipt of Awards under the Plan and the payment, and
exercise thereof. Each person who is or shall have been a member of the
Committee, or of the Board, shall be indemnified and held harmless by the
Company against and from (i) any loss, cost, liability, or expense (including,
but not limited to, attorneys fees) that may be imposed upon or reasonably
incurred by him or her in connection with or resulting from any claim, action,
suit, or proceeding to which he or she may be a party or in which he or she
may be involved by reason of any action taken or failure to act under the Plan
or any Award Agreement, and (ii) any and all amounts paid by him or her in
settlement thereof, with the Company's prior written approval, or paid by him
or
her in satisfaction of any judgment in any such claim, action, suit, or
proceeding against him or her; provided, however, that he or she shall give
the
Company an opportunity, at the Company's expense, to handle and defend such
claim, action, suit, or proceeding before he or she undertakes to handle and
defend the same on his or her own behalf. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which such
persons may be entitled under the Company's Articles of Incorporation or
By-Laws, by contract, as a matter of law or otherwise, or under any power that
the Company may have to indemnify them or hold them harmless.
25.
Mitigation
of Excise Tax
.
Subject
to any other agreement providing for the Company's indemnification of the tax
liability described herein, if any payment or right accruing to a Participant
under this Plan (without the application of this Section), either alone or
together with other payments or rights accruing to the Participant from the
Company or an Affiliate, would constitute a "parachute payment," as defined
in
Section 280G of the Code and regulations thereunder, such payment or right
shall
be reduced to the largest amount or greatest right that will result in no
portion of the amount payable or right accruing under this Plan being subject
to
an excise tax under Section 4999 of the Code or being disallowed as a deduction
under Section 280G of the Code. The determination of whether any reduction
in
the rights or payments under this Plan is to apply shall be made by the
Committee in good faith after consultation with the Participant, and such
determination shall be conclusive and binding on the Participant. The
Participant shall cooperate in good faith with the Committee in making such
determination and providing the necessary information for this purpose.
26.
Proceeds
.
The
proceeds received by the Company from the sale of Shares pursuant to the Plan
will be used for general corporate purposes.
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Adopted
by the Board of Directors of
Bioanalytical
Systems, Inc.
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William
E. Baitinger
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Larry
S. Boulet
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David
W. Crabb
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Leslie
B. Daniels
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Richard
M. Shepperd
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EXHIBIT
4.2
May
18,
2007
Mr.
Richard M. Shepperd
1664
Rockcrest Hills Ave.
Henderson,
NV 89052
Dear
Richard:
The
Board
of Directors of Bioanalytical Systems, Inc. (the "
Company
")
has
approved the grant of non-qualified stock options to you. This letter will
serve
as notice of the grant, effective as of the date of this letter (the
"
Date
of Grant
"),
and
subject
to and conditioned in all respects on the approval of the shareholders of the
Company
,
of
an
option to purchase (the "
Option
")
275,000 of the Common Shares of the Company (the "
Option
Shares
")
on the
terms and conditions set forth herein, and upon your execution and delivery
to
the Company of the copy of this letter included herein will constitute our
agreement as to those terms.
This
Option has not been granted under the terms of the Company’s employee stock
option plans, and is not a "qualified" stock option as defined by the Internal
Revenue Service.
You are
urged to consult with your tax advisors concerning the tax effect of the grant
and exercise of this Option.
1.
OPTION
PRICE
.
The
purchase price of the Option Shares is $7.10 per share (the "
Option
Price
").
2.
MEDIUM
AND TIME OF PAYMENT
.
You
must pay the Option Price with respect to the Option Shares being purchased
at
the time you exercise the Option. The Option Price may be paid either (a) in
cash; (b) by certified check or by bank cashier's check; (c) if you can do
so
without violating Section 16(b) of the Securities Exchange Act of 1934, through
the tender to the Company of outstanding Common Shares, which shall be valued,
for purposes of determining the extent to which the purchase price has been
paid, at the fair market value of the Common Shares on the date of exercise
of
the Option; (d) by surrendering a sufficient portion of the vested Option based
on the difference between the exercise price of the Option and the fair market
value at the time of exercise of the Shares subject to the Option, or (e) by
any
combination of (a), (b), (c) and (d).
3.
TERM
AND EXERCISABILITY OF OPTIONS
.
The
Option is effective immediately upon your acceptance of this letter subject
only
to approval of the Company's shareholders. Unless the Option is terminated
or
vesting of the Option or any portion thereof is accelerated (in each case as
provided in this letter), the Option shall vest and become exercisable in three
installments, as follows: (a) as to the first installment of 75,000 shares,
at
5:00 p.m., West Lafayette, Indiana time, on the day the shareholders of the
Company approve the Option, (b) as to the second installment of 100,000 shares,
on December 1, 2008, and (c) as to the third installment of 100,000 shares,
on December 1, 2009. The Option shall also vest and become exercisable as
to all unvested Option Shares upon the occurrence of a "Change in Control"
as
defined in your Employment Agreement with the Company of even date herewith,
as
the same may be amended from time to time. The Option will be considered to
have
been effectively exercised only upon delivery to the Company, with a copy to
the
Chair of the Compensation Committee of the Board of Directors of the Company,
of
the Option Price and a "
Notice
of Exercise
"
in the
form attached hereto, and the satisfaction of all other conditions described
in
this letter. The Option shall expire as to all unexercised Option Shares at
the
close of business on the tenth anniversary of the date of this letter (or on
the
next business day if that date is a Saturday, Sunday or holiday).
4.
APPROVAL
BY SHAREHOLDERS
.
The
Option granted hereby is conditioned upon and subject to approval by the
shareholders of the Company. In the event that the shareholders of the Company
fail to approve the grant of the Option within twelve (12) months of the date
of
this letter, the Option shall be null and void and of no effect, and neither
you
nor the Company shall have any continuing rights or obligations hereunder.
The
Company will submit the Option to its shareholders for approval at the first
annual or special meeting of its shareholders occurring after the date hereof,
and in any event prior to the expiration of twelve (12) months from the date
hereof.
5.
CESSATION
OF SERVICE WITH THE COMPANY
.
In the
event you cease to serve as an employee of the Company or any of its
subsidiaries, this Option shall terminate immediately upon termination of
employment as to any unexercised Option Shares; provided, however, that if
termination of employment is due to retirement with the consent of the Company,
the expiration of the term of your employment with the Company set forth in
your
employment agreement, or is due to a permanent and total disability, you shall
have the right to exercise the Option with respect to the Common Shares for
which it could have been exercised on the effective date of termination of
employment at any time within three (3) months after the termination date.
In
the event of your death while serving as an employee of the Company or any
of
its subsidiaries, your personal representative shall have the right to exercise
this Option with respect to the Common Shares for which it could have been
exercised on the date of your death at any time within six (6) months of your
death. Whether termination is a retirement with the consent of the Company
or
due to permanent and total disability, and whether an authorized leave of
absence on military or government service shall be deemed to constitute
termination of employment for the purposes of this Option, shall be determined
by the Board of Directors in its sole discretion, which determination shall
be
final and conclusive.
6.
RECAPITALIZATION
.
The
number of Option Shares and the Option Price each shall be proportionally
adjusted for any increase or decrease in the number of issued Common Shares
resulting from a subdivision or consolidation of shares of the Company, the
payment of a share dividend, a share split or other increase or decrease in
the
outstanding Common Shares effected without receipt of consideration by the
Company (including an increase or decrease effected as a part of the
Recapitalization of the Company, as defined herein). In the event that there
shall be a recapitalization or reorganization of the Company or a
reclassification of its outstanding shares (each a "
Recapitalization
")
as a
result of which other shares (the "
New
Shares
")
are
issued in exchange for Common Shares, then there shall be substituted for the
Option Shares then issuable hereunder that number of New Shares into which
those
Option Shares have been converted had they been outstanding at the effective
date of the Recapitalization.
7.
MERGER,
DISSOLUTION
.
If the
Company shall enter into any agreement of merger or consolidation (whether
or
not it shall be the surviving entity thereunder), the Company shall have the
right to terminate this Option as of any date specified in a written notice
given to you not less than 30 days prior to the termination date. If the merger
or consolidation described in that notice is not consummated within 180 days
following the termination date of this Option specified in the notice, this
Option thereafter shall be deemed to have been continuously in effect since
the
date hereof. In the event of the sale of all or substantially all of the assets
of the Company and the distribution of the proceeds thereof to shareholders
in
liquidation of the company, the Company shall give you 30 days prior written
notice specifying record date for the purpose of determining the shareholders
entitled to participate in that distribution and this Option shall expire as
to
all Option Shares that remain unexercised as of the date of that
distribution.
8.
NONASSIGNABILITY
.
This
Option is not assignable or transferable except by will or under the laws of
descent and distribution. During your lifetime, this Option shall be exercisable
only by you (or if you become incapacitated, by your legal guardian or
attorney-in-fact).
9.
ISSUANCE
OF SHARES AND COMPLIANCE WITH SECURITIES LAWS
.
The
Company may postpone the issuance and delivery of certificates representing
Common Shares until (a) the admission of such shares to listing on any exchange
on which shares of the Company of the same class are then listed and (b) the
completion of any requirements for registration or other qualification of the
shares under any state or Federal law, rule or regulation or the rules and
regulations of any exchange upon which the Common shares are traded as the
Company shall determine to be necessary or advisable. The Company shall use
its
reasonable commercial efforts to complete any required registration or other
qualification. You have no right to require the Company to register the Common
Shares acquired upon the exercise of this Option under federal or state
securities laws. As a condition to the effective exercise of this Option you
may
be required to make such representations and furnish such information as may,
in
the opinion of counsel for the Company, be appropriate to permit the Company
to
determine whether registration or qualification of those shares is required
in
connection with that transaction.
10.
RIGHTS
AS A SHAREHOLDER
.
You
shall have no rights as a shareholder with respect to Common Shares subject
to
this Option until the date of issuance of a certificate to you. A certificate
will not be issued until you have exercised the Option, fully paid for the
Common Shares acquired thereby and satisfied all other details described in
this
letter. No adjustment will be made for dividends or other rights for which
the
record date is prior to the date a certificate is issued.
11.
NO
OBLIGATION TO EXERCISE OPTION
.
The
grant of this Option imposes no obligation upon you to exercise the
Option.
12.
NO
OBLIGATION TO CONTINUE EMPLOYMENT
.
The
grant of this Option to you does not constitute any contract of employment
between you and the Company, and does not impose any obligation of the Company
to continue your employment.
13.
WITHHOLDINGS
.
As a
condition to the effective exercise of this Option, the Company shall have
the
right to require you to remit to the Company amounts sufficient to satisfy
any
applicable withholding requirements set forth in the Internal Revenue Code
of
1986, as amended, or under state or local law relating to the Option. The
Company shall have the right, to the extent permitted by law, to deduct from
any
payment of any kind otherwise due to you any federal, state or local taxes
of
any kind required by law to be withheld with respect to the exercise of the
Option.
14.
POWER
AND AUTHORITY
.
The
Board of Directors shall have the full power and authority to take all actions
and make all determinations required or provided for under the terms of this
Option; to interpret and construe the provisions of this letter, which
interpretation or construction shall be final, conclusive and binding on the
Company and you; and to take any and all other actions and make any and all
other determinations not consistent with the specific terms and provisions
of
this letter which the Board of Directors deems necessary or
appropriate.
Please
acknowledge your receipt of this letter and your agreement to the terms set
forth herein by signing and returning the copy enclosed for that
purpose.
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Very
truly yours,
BIOANALYTICAL
SYSTEMS, INC.
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By:
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/s/ Michael
R. Cox
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Michael
R. Cox, Vice President-Finance and
Chief
Financial Officer
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Accepted
and agreed to:
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/s/
Richard M. Shepperd
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Richard
M. Shepperd
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EXHIBIT
A
BIOANALYTICAL
SYSTEMS, INC.
NOTICE
OF EXERCISE
Date:
__________
Mr.
Michael R. Cox
Chief
Financial Officer
BIOANALYTICAL
SYSTEMS, INC.
2701
Kent
Avenue
West
Lafayette, Indiana 47906
Dear
Mr.
Cox:
Pursuant
to the agreement dated May 18, 2007 granting me an option ("
Option
")
with
respect to the purchase of Common Shares of Bioanalytical Systems, Inc.,
please accept this letter as notice of exercise of the Option with respect
to
___________ Common Shares. I am tendering full payment to the Company for the
Common Shares and all applicable withholdings in one or more of the following
forms:
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1.
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Cash
in the amount of $__________.
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2.
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Certified
or bank cashier's check in the amount of
$__________.
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3.
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Tender
to the Company of
__________
outstanding
Common Shares.
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4.
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Surrender
of vested Options to purchase __________ Common Shares that are
subject to
the Option.
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Unless
I
have delivered herewith sufficient funds to pay in full all required
withholdings under applicable law, I authorize the Company to withhold from
the
Common Shares otherwise issuable to me as a result of this exercise of the
Option to pay in full all such required withholdings.
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Signature
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Printed
Name
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Address
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