EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT ("Agreement")
is
made and entered into this 18th day of May, 2007 (the "Signing
Date"),
by
and among BIOANALYTICAL SYSTEMS, INC., a corporation organized under the laws
of
the State of Indiana ("Company"),
and
Xxxxxxx X. Xxxxxxxx ("Employee").
Preliminary
Statements:
A. The
Company is engaged in the business of providing contract research services
and
manufacturing and distributing scientific instruments ("Business").
B. The
Company wishes to employ Employee on the terms and conditions contained herein,
and Employee wishes to enter into such employment.
In
consideration of the premises and mutual covenants and agreements contained
herein, the parties hereby agree as follows:
ARTICLE
1
Term,
Compensation, and Benefits
Section
1.1.
Term.
The
Company hereby agrees to employ the Employee, and the Employee hereby accepts
employment with the Company, on the terms and conditions set forth in this
Agreement until December 31, 2009 (the "Initial
Term").
The
Initial Term shall be extended for successive three month periods (the
"Additional
Terms,"
and
together with the Initial Term, the "Employment
Period"),
except that if either the Employee or the Company gives the other party written
notice at least thirty (30) days before the end of the Initial Term, or any
Additional Term, then this Agreement shall expire at the end of its then current
term.
Section
1.2.
Compensation
and Benefits.
Section
1.2.1.
Salary.
The
Company will pay Employee a base salary of $35,000.00 per month. Salary shall
be
paid in equal semi-monthly installments in arrears.
Section
1.2.2.
Discretionary
Bonus.
Employee will be eligible for an annual bonus, which shall be based upon
Employee’s performance of his duties during the preceding twelve (12) month
period of employment. The amount and terms of such bonus shall be determined
by
the Compensation Committee of the Board of Directors of the Company in its
sole
discretion.
Section
1.2.3.
Stock
Options.
As of
the Signing Date, Employee will be granted options to purchase Two Hundred
Seventy-five Thousand (275,000) of the Company's common shares, pursuant to
an
option agreement to be entered into by the Company and Employee as of the date
hereof (the "Option
Agreement"),
at a
price per share equal to the closing price for the Company's common shares
as
reported on the NASDAQ Stock Market on the last trading day prior to the Signing
Date, subject to approval of such grant by the shareholders of the Company
at
the next annual meeting of shareholders, unless a special meeting of
shareholders is held prior thereto, in which case shareholder approval shall
be
sought at such special meeting. Except as otherwise provided in this Agreement
or the Option Agreement, such options shall vest in three (3) installments
as
follows: (a) the first installment of Seventy-Five Thousand (75,000) shares
shall vest on the date the shareholders of the Company approve the grant of
the
options, (b) the second installment of One Hundred Thousand (100,000) shares
shall vest on December 1, 2008, and (c) the final installment of One Hundred
Thousand (100,000) shares shall vest on December 1, 2009. All unvested options
shall vest immediately upon a Change in Control. If (a) the Company's
shareholders do not approve the grant of options described in this Section
1.2.3,
and (b)
all conditions which must be satisfied prior to the exercise of any options
under the option agreement and hereunder (including the continued employment
of
Employee) are satisfied at the time each installment of options would have
otherwise become vested, Employee shall be eligible for a cash bonus to be
paid
in three (3) installments on the Company's first regular payroll payment date
after (i) the date of the meeting at which the Company's shareholders fail
to
approve the option grant, (ii) December 1, 2008, and (iii) December 1, 2009.
Each such bonus payment shall be in an amount determined by subtracting
the
closing stock price on the Signing Date from the closing stock price on the
last
trading day prior to each such payment date (each such price, the "Future
Closing Price")
and
multiplying
the
result (but only if a positive number) by the number of options that would
have
vested and become exercisable on such date if the shareholders had approved
the
option grant.
Section
1.2.4 Expense
Reimbursement. Employee
will be entitled to reimbursement of travel, entertainment and other out of
pocket expenses incurred by him in the course of his employment in accordance
with the Company's standard reimbursement policies.
Section
1.2.5.
Vacation
Policy.
Employee will be eligible for three (3) weeks of vacation each year of the
Employment Period. Employee's compensation shall continue to be paid in full
during each vacation period. Any unused vacation remaining at the end of any
year ending on an anniversary date of the effective date hereof, or January
1,
shall carry over to the following one-year period commencing on such anniversary
date (the "Following
Year"),
but
shall not carry over beyond the Following Year. Vacation time not used prior
to
the expiration of the Following Year will be banked for short-term disability
as
described in the Company Employee Handbook.
Section
1.2.6.
Other
Benefits.
During
the Employment Period, the Employee shall be entitled to participate in all
employee benefit plans which are generally made available to employees of the
Company, subject to the eligibility, qualification, waiting period and other
terms and conditions of such plans as they shall be in effect from time to
time
unless listed herein as exceptions from those terms and conditions.
Section
1.2.7.
Required
Withholdings.
All
amounts to be paid hereunder shall be paid in accordance with normal payroll
procedures of the Company and shall be subject to all required withholdings
and
deductions.
ARTICLE
2
Duties
Section
2.1 Duties.
During
the Employment Period, the Employee will be the chief executive officer of
the
Company with the titles President and Chief Executive Officer and shall have
full responsibility and decision-making authority for the day-to-day operations
of the Company's business, subject to the general control of the Board of
Directors. The Employee shall report to and serve at the pleasure of the Board
of Directors of the Company and shall perform such other services as the Board
of Directors of the Company may reasonably require to conduct the Company's
business. Notwithstanding any other provisions of this Agreement, the Company
shall not impose employment duties or constraints of any kind upon the Employee
which would require the Employee to violate any ordinance, regulation, statute
or other law. The Employee shall devote his full working time, attention and
energy to the performance of the duties imposed hereunder. The Employee shall
conform to such hours of work as may from time to time reasonably be required
of
him and shall not be entitled to receive any additional remuneration for work
outside his normal hours. The Employee will NOT
be held
financially, legally, or otherwise liable for any past practices or actions
or
decisions made by the Company, or its predecessors prior to the start of the
Employee's beginning date of employment.
2
ARTICLE
3
Confidentiality,
Non-Solicitation and Other Matters
Section
3.1.
Confidentiality
Agreement.
The
Employee, prior to and during the term of employment under this Agreement,
has
had and will have access to and has become or will become familiar with
information, whether or not originated by the Employee, which is used in or
related to the Business or the business of the Company and its subsidiaries
and
affiliates of the Company and is (a) proprietary to, about, or created by the
Company its subsidiaries or its affiliates, (b) designated as confidential
by
the Company, its subsidiaries or its affiliates, or (c) not generally known
to
or ascertainable by proper means by the public ("Confidential
Information").
Further,
the Employee has had and will have access to Proprietary Items (as defined
below) proprietary to the Company, its subsidiaries or its affiliates.
"Proprietary Items" shall mean all legally-recognized rights which result from
or are derived from the Employee's work product or the work product of others
made for the Company, its subsidiaries or its affiliates, including all past,
present and future work product made for the Company, its subsidiaries or its
affiliates, or with knowledge, use or incorporation of Confidential Information,
including, but not limited to works of authorship, developments, inventions,
innovations, designs, discoveries, improvements, trade secrets, trademarks,
applications, techniques, know-how and ideas, whether or not patentable or
copyrightable, conceived or made or developed by the Employee (solely or in
cooperation with others) or others during the term of this Agreement or prior
to
or during his tenure with the Company, or which are reasonably related to the
Business or the business of the Company or certain subsidiaries or affiliates
of
the Company or the actual or demonstrably anticipated research and development
of the Company.
The
Employee agrees that any Confidential Information and Proprietary Items will
be
treated in full confidence and shall not be used, directly or indirectly, by
him, except as required in the course of his employment with the Company, nor
shall the same be disclosed to any other firms, organizations, or persons
outside of the Company's employees bound by similar agreement, during the term
of this Agreement or at any time thereafter. All Confidential Information and
Proprietary Items, whether prepared by the Employee or otherwise, coming into
his possession shall remain the exclusive property of the Company and shall
not
be permanently removed from the premises of the Company under any circumstances
whatsoever, without the prior written consent of the Company. Upon termination
of Employee's employment with the Company for any reason, Employee shall
immediately return and deliver to the Company all Proprietary Items and all
documents and other items containing Confidential Information, including all
copies thereof.
3
The
Employee will not be obliged to keep information confidential to the extent
that
the information has ceased to be confidential and has entered the public domain
otherwise than due to the Employee's acts. The provisions of this Section
3.1
shall be
in addition to, and shall not affect, the Employee's common law duty of fidelity
to the Company.
Section
3.2.
Disclosure
and Assignment of Inventions.
Employee will promptly disclose in writing to the Company complete information
concerning each and every invention, discovery, improvement, device, design,
apparatus, practice, process, method or product, whether patentable or not,
made, developed, perfected, devised, conceived or first reduced to practice
by
Employee, either solely or in collaboration with others, during his employment
by the Company, or within six (6) months thereafter, whether or not during
regular working hours, relating either directly or indirectly to the business,
products, practices or techniques of the Company (hereinafter referred to as
"Inventions").
Employee hereby acknowledges that any and all of said Inventions are the
property of the Company and hereby assigns and agrees to assign to the Company
any and all of Employee's right, title and interest in and to any and all of
such Inventions.
Section
3.3.
Non-solicitation.
The
Employee agrees that during the Employee's employment with the Company and
for
an additional period of the two (2) years immediately following termination
of
the Employee's employment with the Company, the Employee shall not directly
or
indirectly, as an individual or as a director, officer, contractor, employee,
consultant, partner, investor or in any other capacity with any corporation,
partnership or other person or entity, other than the Company (an "Other
Entity"),
(i)
contact or communicate with any person or entity who was a customer or client
of
the Company in the Business during the period in which the Employee was employed
by the Company, or any person or entity with whom the Company had discussions
regarding that person or entity becoming a client or customer of the Company
in
the Business during the period in which the Employee was employed by the
Company, for the purpose of inducing any such customer or client to move its
account from the Company to another company in the Business or otherwise
terminate or modify in a manner that is adverse to the Company its relationship
with the Company; provided, however, that nothing in this sentence shall prevent
the Employee from becoming employed by or providing consulting services to
any
such customer or client of the Company in the Business, or (ii) solicit any
other employee of the Company for employment or a consulting or other services
arrangement with an Other Entity or to otherwise terminate their employment
with
the Company. The restrictions of this Section
3.3
shall
not be deemed to prevent the Employee from owning not more than five per cent
(5%) of the issued and outstanding shares of any class of securities of an
issuer whose securities are listed on a national securities exchange or
registered pursuant to Section 12(g) of the Securities Exchange Act of 1934,
as
amended. In the event a court of competent jurisdiction determines that the
foregoing restriction is unreasonable in terms of geographic scope or otherwise
then the court is hereby authorized to reduce the scope of said restriction
and
enforce this Section
3.3
as so
reduced. If any sentence, word or provision of this Section
3.3
shall be
severed herefrom and the remainder shall be enforced as it the unenforceable
sentence, word or provision did not exist. Notwithstanding any provision of
this
Agreement to the contrary, the terms and conditions of this Section
3.3
shall
survive for a period of two (2) years following termination of the Employee's
employment with the Company, at which time the terms and conditions of this
Section
3.3
shall
terminate.
4
Section
3.4.
Survival.
Except
as set forth below, the provisions of Sections
3.1,
3.2
and
3.3
shall
survive and be enforceable following termination of Employee's employment with
the Company, regardless of the reason for or circumstances of such termination.
ARTICLE
4
Termination
of Employment
Section
4.1.
Resignation
by the Employee.
The
Employee may resign from his employment with the Company at any time by
providing written notice to the Company of resignation as set forth below.
Section
4.1.1.
Resignation
with "Good Reason."
Employee may resign at any time for "good reason," due to:
(a) a
material breach of this Agreement by the Company which continues after the
Employee has given the Company thirty (30) days' written notice of such breach,
or
(b) the
assignment to the Employee of duties materially inconsistent with this Agreement
other than in accordance with the terms of this Agreement, and the Company
has
not rectified such assignment within thirty (30) days after the Employee has
given the Company written notice of such breach.
A
termination by the Employee for "good reason" shall entitle the Employee to
the
same compensation and benefits as if the Employee had been terminated by the
Company without Cause. In the event of a termination by the Employee for "good
reason," the provisions of Section
3.3
shall
not apply and shall be of no force or effect.
Section
4.1.2.
Resignation
Without "Good Reason."
The
Employee may resign from his employment with the Company at any time by
providing written notice to the Company at least fourteen (14) days prior to
the
effective date of the resignation (the actual effective date of such resignation
pursuant to any subsection of Section
4.1
being
the "Resignation
Date").
Section
4.1.3.
Post-Resignation
Undertakings.
Upon
any resignation by the Employee, the Employee shall use reasonable best efforts
to assist the Company in good faith to effect a smooth transition.
Section
4.2.
Termination
by the Company.
The
Company may terminate the Employee's employment with the Company at any time
(the actual date of termination being referred to as the "Termination
Date")
with
or without Cause (as defined herein), by providing written notice of the
Termination Date to the Employee ("Termination
Notice").
Unless otherwise provided in a Termination Notice, any Termination Notice shall
be effective immediately and Employee's employment shall terminate on the
Termination Date set forth therein. Upon termination of Employee by the Company
pursuant to Section
4.2,
the
Employee shall use reasonable best efforts to assist the Company in good faith
to effect a smooth transition. Upon receipt by the Employee of a Termination
Notice pursuant to this Section
4.2,
the
Company may request the Employee to vacate the premises owned by the Company
and
used in connection with the Business within a reasonable time.
5
Section
4.2.1.
Termination
by the Company With Cause.
This
Agreement shall be deemed to be terminated and the employment relationship
between the Employee and the Company shall be deemed severed upon written notice
to the Employee by the Company after the occurrence of any of the following,
each of which shall constitute "Cause" for purposes of this
Agreement:
(a) The
final, non-appealable imposition of any restrictions or limitations by any
governmental authority having jurisdiction over the Employee to such an extent
that he cannot render the services for which he was employed.
(b) The
Employee (i) willfully and continually fails or refuses (without proper cause)
to substantially perform the duties of his employment and to adhere in all
material respects to the provisions of this Agreement and the written policies
of the Company, which failure shall not be remedied within ten (10) business
days after written notice from the Company to the Employee, or (ii) conducts
himself in a fraudulent manner, or (iii) conducts himself in an unprofessional
or unethical manner which in the reasonable judgment of the Board of Directors
of the Company is detrimental to the Company.
(c) The
Employee willfully and continually fails or refuses to adhere to any written
agreements to which the Employee and the Company or any of its affiliates are
parties, which failure shall not be remedied within ten (10) business days
after
written notice from the Company to the Employee.
(d) Employee
is convicted of a felony or a crime involving moral turpitude or enters a plea
of nolo contendere thereto.
Section
4.2.2.
Termination
upon Employee's Death.
The
Employee's employment shall be automatically terminated and the employment
relationship between the Employee and the Company shall be deemed severed upon
the death of the Employee during the Employment Period.
Section
4.2.3.
Termination
upon Employee's Permanent Disability.
The
Company shall may terminate Employee's employment upon fourteen (14) days notice
in the event of the
permanent disability of the Employee, which for the purposes of this Agreement
is defined as the Employee's inability, through physical or mental illness
or
other cause, to perform, in the opinion of the Board, his normal duties as
an
employee for a period of ninety (90) days out of any one hundred twenty (120)
day period during the term of this Agreement or for a period of ninety (90)
consecutive days.
6
Section
4.3.
Consequences
of Termination of Employment.
Section
4.3.1.
Termination
without Cause and Resignation with "Good Reason."
In the
event of termination of Employee's employment without Cause pursuant to
Section
4.2.1
or the
resignation by Employee for "good reason" pursuant to Section
4.1.1,
(a) the
Company shall pay to Employee the Employee's then current salary through the
Termination Date or Resignation Date, payable to Employee no later than the
Company's next regular payroll payment date following the Resignation Date
or
Termination Date, and shall pay Employee as compensation for loss of office
(i)
a sum equal to Employee's then-current base salary for the remainder of the
Initial Term, to be paid in equal monthly installments over the period following
the Termination Date or Resignation Date, which payments shall be paid in
accordance with the normal payroll procedures of the Company and shall be
subject to all required withholdings and deductions, provided that such payments
shall cease if the Employee becomes employed during such period, (ii) all
vacation accrued as of the Termination Date or Resignation Date calculated
in
accordance with Section
1.2.5,
payable
to Employee no later than the Company's next regular payroll payment date
following the Resignation Date or Termination Date, and (iii) all bonuses earned
but not paid as of the Termination Date or Resignation Date; and (b) the
provisions of Section
3.3
shall
not apply and shall be of no further force or effect. Payment of the bonus,
if
any, shall be made on or before March 31 of the year following the Resignation
Date or Termination Date.
Section
4.3.2.
Termination
for Cause and Resignation without Good Reason.
In the
event of termination of Employee's employment for Cause or the resignation
by
Employee without "good reason," the Company shall pay to Employee the Employee's
earned but unpaid then-current base salary through the Termination Date or
Resignation Date, payable to Employee no later than the Company's next regular
payroll payment date following the Resignation Date or Termination Date, and
which payments shall be subject to all required withholdings and deductions,
(b)
all vacation accrued as of the Termination Date or Resignation Date calculated
in accordance with Section
1.2.5,
payable
to Employee no later than the Company's next regular payroll payment date
following the Resignation Date or Termination Date, and (c) all bonuses earned
but not paid as of the Termination Date or Resignation Date. Payment of the
bonus, if any, shall be made on or before March 31 of the year following the
Resignation Date or Termination Date.
Section
4.3.3.
Death
of Employee.
In the
event of the death of Employee, the Company shall pay to Employee's executor,
personal representative, administrator, or heirs, as the case may be, the
Employee's earned but unpaid then-current base salary through the date of the
Employee's death, payable no later than the Company's next regular payroll
payment date following the death of Employee, which payment shall be subject
to
all required withholdings and deductions, (b) all vacation accrued as of the
Termination Date calculated in accordance with Section
1.2.5,
payable
no later than the Company's next regular payroll payment date following the
death of Employee, and (c) all bonuses earned but not paid as of the date of
Employee’s death. Payment of the bonus, if any, shall be made on or before March
31 of the year following Employee's death.
Section
4.3.4.
Permanent
Disability of Employee.
In the
event of termination of Employee's employment as a consequence of Employee's
Permanent Disability, the Company shall pay to Employee the Employee's earned
but unpaid then-current base salary through the Termination Date, payable to
Employee no later than the Company's next regular payroll payment date following
the Termination Date, and which payments shall be subject to all required
withholdings and deductions, (b) all vacation accrued as of the Termination
Date
calculated in accordance with Section
1.2.5,
payable
to Employee no later than the Company's next regular payroll payment date
following the Termination Date, and (c) all bonuses earned but not paid as
of
the Termination Date. Payment of the bonus, if any, shall be made on or before
March 31 of the year following the Termination Date.
7
Section
4.3.5.
Additional
Compensation. Employee
shall not be entitled to other compensation as a result of the termination
of
his employment for any reason, except pursuant to Article
5.
ARTICLE
5
Change
in Control
The
Board
of Directors of the Company (the "Board")
has
determined that it is in the best interests of the Company and its shareholders
to assure that the Company will have the continued dedication of the Employee,
notwithstanding the possibility or occurrence of a Change in Control (as defined
below) of the Company. The Board believes it is imperative to diminish the
inevitable distraction of the Employee by virtue of the personal uncertainties
and risks created by a pending or threatened Change in Control and to encourage
the Employee's full attention and dedication to the Company currently and in
the
event of any pending, threatened or actual Change in Control, and to provide
the
Employee with compensation and benefits arrangements upon a Change in Control
which are consistent with the Employee’s significant leadership position and
which are competitive. (See Addendum
A
for
Definition of "Change
in Control").
If
Employee receives compensation pursuant to this Article
5,
Employee shall not be entitled to any compensation payable pursuant to
Article
4.
Section
5.1.
Involuntary
Termination/Change in Control.
In the
case of involuntary termination of the Employee, resulting from a Change in
Control of the Company, and due to one or more of the following conditions
being
met up to one (1) year following such Change in Control:
(a) Elimination
or diminution of the Employee’s position, authority, duties and responsibilities
relative to the most significant of those held, exercised and assigned at any
time during the six (6) month period immediately preceding a Change in Control;
or
(b) Change
in
location requiring the Employee’s services to be performed at a location other
than the location where the Employee was employed immediately preceding a Change
in Control, other than any office which is the headquarters of the Company
and
is less than thirty-five (35) miles from such location.
The
Employee will be deemed to have received written notice of involuntary
termination and will be paid compensation in the form of Terminal Pay as set
forth in this Article
5.
8
Section
5.2.
Terminal
Pay.
In the
event of the termination of Employee's employment pursuant to Section
5.1,
Employee will receive terminal pay, equal to Eight Thousand Three Hundred
Thirty-three and 34/100 Dollars ($8,333.34) for each month remaining in the
Employment Period as of the date of termination of employment (plus
a
prorated amount at the same rate for any portion of a month remaining in the
Employment Period as of such date), which amount shall be payable to the
Employee by the Company no later than the Company's next regular payroll payment
date following the date of termination of Employee's employment subject to
all
required withholdings and deductions (the "Terminal
Pay").
Section
5.3.
Special
Bonus.
In
addition to the Terminal Pay, the Employee will be eligible, based on
performance, for any special bonus program which may be instituted by the
Company in recognition of particular assignments, duties or responsibilities
required during the crucial transition period leading up to, or following,
the
Change in Control.
ARTICLE
6
Miscellaneous
Section
6.1.
Relationship
between the Parties.
The
relationship between the Company and the Employee shall be that of an employer
and an employee, and nothing contained herein shall be construed or deemed
to
give the Employee any interest in any of the assets of the Company.
Section
6.2. Eligibility.
Employee must provide proof of eligibility to work in the United States, within
three days of employment, as mandated by current federal employment laws. Proof
of eligibility includes a valid driver's license, original social security
card,
passport, certified birth certificate, or an unexpired employment eligibility
card.
Section
6.3.
Notices.
Any
notice required or permitted to be given under this Agreement shall be in
writing and delivered personally or sent by certified mail, addressed to the
party entitled to receive said notice, at the following addresses:
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If
to Company:
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0000
Xxxx Xxxxxx
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Xxxx
Xxxxxxxxx, XX 00000
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Attn:
Board of Directors
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If
to Employee:
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Xxxxxxx
X. Xxxxxxxx
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0000
Xxxx Xxxxxx
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Xxxx
Xxxxxxxxx, XX 00000
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or
at
such other address as may be specified from time to time in notices given in
accordance with the provisions of this Section
5.3.
Section
6.4.
Enforceability.
Both
the Company and the Employee stipulate and agree that if any portion, paragraph
sentence, term or provision of this Agreement shall to any extent be declared
illegal, invalid or unenforceable by a duly authorized court of competent
jurisdiction, then, (a) the remainder of this Agreement or the application
of
such portion, paragraph, sentence, term or provision in circumstances other
than
those as to which it is so declared illegal, invalid or unenforceable, shall
not
be affected thereby, (b) this Agreement shall be construed in all respects
as if
the illegal, invalid or unenforceable matter had been omitted and each portion
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law and (c) the illegal, invalid or unenforceable portion,
paragraph, sentence, term or provision shall be replaced by a legal, valid
and
enforceable provision which most closely reflects the intention of the parties
hereto as reflected herein.
9
Section
6.5.
Nonwaiver.
The
failure of either party hereto to insist in any one or more instances upon
performance of any of the provisions of this Agreement or to pursue its or
his
rights hereunder shall not be construed as a waiver of any such provisions
or as
the relinquishment of any such rights.
Section
6.6.
Succession.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and upon their heirs, personal representatives, and successor entities. This
Agreement may not be assigned by either party without prior written agreement
of
the other party.
Section
6.7.
Governing
Law.
The
laws of the State of Indiana shall govern the construction and enforceability
of
this Agreement.
Section
6.8.
Entire
Agreement.
This
Agreement constitutes the entire Agreement between the parties as to the subject
matter contained herein and all other agreements or understandings are hereby
superseded and terminated.
Section
6.9.
Headings.
The
headings of the sections are inserted for convenience only and do not affect
the
interpretation or construction of the sections.
Section
6.10.
Remedies.
Employee acknowledges that a remedy at law for any breach or threatened breach
of the provisions of Sections
3.1
through
3.3
of this
Agreement would be inadequate and therefore agrees that the Company shall be
entitled to injunctive relief, both preliminary and permanent without any
requirement to post a bond or other surety, in addition to any other available
rights and remedies in case of any such breach or threatened breach; provided,
however, that nothing contained herein shall be construed as prohibiting the
Company from pursuing any other remedies available for any such breach or
threatened breach. Employee further acknowledges and agrees that in the event
of
a breach by Employee of any provision of Sections
3.1
through
3.3
of this
Agreement, the Company shall be entitled, in addition to all other remedies
to
which the Company may be entitled under this Agreement, to recover from Employee
its reasonable costs including attorney's fees if the Company is the prevailing
party in an action by the Company. This Agreement is entered into by the Company
for itself and in trust for each of its affiliates with the intention that
each
company will be entitled to enforce the terms of this Agreement directly against
Employee.
10
IN
WITNESS WHEREOF, the Company and the Employee have executed, or caused to be
executed, this Agreement as of the day and year first written
above.
|
"COMPANY"
Bioanalytical
Systems, Inc.
|
"EMPLOYEE" | ||
| By: /s/ Xxxxxxx X. Xxx | /s/ Xxxxxxx X. Xxxxxxxx | ||
|
Xxxxxxx
X. Xxx
Vice
President-Finance and
Chief
Financial Officer
|
Xxxxxxx X. Xxxxxxxx |
11
ADDENDUM
A
Definition
of Change in Control
A
"Change
in Control" shall mean the occurrence of any of the following
events:
|
1
|
Approval
by shareholders of the Company of (a) any consolidation or merger
of the
Company in which the Company is not the continuing or surviving
corporation or pursuant to which shares of stock of the Company would
be
converted into cash, securities or other property, other than a
consolidation or merger of the Company in which holders of its common
shares immediately prior to the consolidation or merger have substantially
the same proportionate ownership of voting common stock of the surviving
corporation immediately after the consolidation or merger as immediately
before, or (b) a sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially
all the assets of the Company.
|
|
2
|
A
change in the majority of members of the Board of Directors of the
Company
within a twenty-four (24) month period unless the election, or nomination
for election by the Company shareholders, of each new director was
approved by a vote of two-thirds (2/3) of the directors then still
in
office who were in office at the beginning of the twenty-four (24)
month
period.
|
|
3
|
The
Company combines with another company and is the surviving corporation
but, immediately after the combination, the shareholders of the Company
immediately prior to the combination do not hold, directly or indirectly,
more than fifty percent (50%) of the share of voting common stock
of the
combined company (there being excluded from the number of shares
held by
such shareholders, but not from the shares of voting common stock
of the
combined company, any shares received by affiliates (as defined in
the
rules of the SEC) of such other company in exchange for stock of
such
other company).
|
12
