September 28, 2007
September
28, 2007
VIA
E-MAIL and OVERNIGHT COURIER
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
Xxxxx
Xxxxxxx LLP
000
Xxxx
00xx
Xxxxxx,
Xxxxx 000
Indianapolis,
IN 46240
Re: Severance
Agreement and Release of All Claims
Dear
Xxxxxxx:
As
communicated to you in June , 2007, the Board of Directors and management
team
of Bioanalytical Systems, Inc. have determined to make a change that will
result
in the elimination of your position with the Company. You were initially
placed
on a two-week paid leave. That leave was subsequently extended to August
28,
2007, to give you sufficient time to consult with counsel. As you are aware,
BASi announced your separation effective as of August 28 in its Form 8-K
filed
with the SEC that same date.
Following
the discussions between your counsel and counsel for XXXx, XXXx is prepared
to
offer you a severance package with the terms detailed in this letter. Because
this severance offer is a modified version of the original offer presented
to
you on August 11, 2007, the period spelled out in paragraph 19 below to consider
this Agreement has already expired. However, in an effort to facilitate the
resolution of these discussions, BASi will give you until October 5 to consider
this modified version of the Agreement and to return an executed copy to
BASi.
XXXx
has
paid you all compensation due and owing for service prior to your separation
date (including payment for all accrued but unused vacation), and you will
not
be entitled to any additional compensation from BASi or to participate in
any of
BASi's benefit plans (except as otherwise specifically provided herein) other
than as set forth in the Agreement below. In addition, to the extent you
have
not already done so, you are expected to return all keys, computers, key
cards,
files and other Company property, of any kind, to the Company by October
5,
2007.
| A. |
Terms.
|
| 1. |
Definitions.
The terms “you” and “your” and “Xxxxxxxxx” mean Xxxxxxx X.
Xxxxxxxxx, and
anyone who has or obtains any legal right or claims through her.
“BASi”
and “Company” mean Bioanalytical Systems, Inc. and include its past and
present officers, directors, employees, agents, related corporations
and
entities, affiliates, principals, shareholders, attorneys, trustees,
subsidiaries, predecessors, successors and assigns, any and all employee
benefit plans (and any fiduciary of such plans) sponsored by XXXx.
“Agreement” means this letter agreement which contains the terms of the
severance package and which includes a release of all claims arising
out
of Xxxxxxxxx employment relationship with XXXx and the termination
of the
employment relationship. “The Parties” means Xxxxxxxxx and
XXXx.
|
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
September
28, 2007
Page
2
| 2. |
No
Admission of Liability.
This Agreement shall not in any way be construed as (a) an admission
by
BASi that it has acted wrongfully with respect to you or any other
person,
or that you have any rights whatsoever against BASi, or (b) an admission
by Xxxxxxxxx that she acted wrongfully with respect to BASi or any
other
person, or that BASi has any rights whatsoever against
Xxxxxxxxx.
|
| 3. |
Resignation.
Pursuant to this Agreement, Xxxxxxxxx will be deemed to have resigned
her
employment and her position as an officer of BASi effective as of
August
28, 2007. Xxxxxxxxx further agrees to resign her membership on the
BASi
Board of Directors immediately upon the Release Effective Date.
|
| 4. |
Claims
released by Xxxxxxxxx.
By
signing this Agreement, Xxxxxxxxx unconditionally and fully releases
and
forever discharges BASi from (a) any and all possible claims, known
or
unknown, arising out of or from her employment with BASi under any
and all
possible legal, equitable, tort, contract or statutory theories,
including
but not limited to any claims for constructive or wrongful discharge
or
breach of contract, except for any claims relating to accrued and
vested
rights under a retirement plan; (b) any and all claims arising on
or
before the date Xxxxxxxxx signs this Agreement, including but not
limited
to any charges, claims, demands or actions under Title VII of the
Civil Rights Act of 1964 and the Equal Pay Act, 42 U.S.C.
§ 2000e et
seq.,
Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, the
Age Discrimination in Employment Act, the Older Workers’ Benefit
Protection Act, the Americans with Disabilities Act, 42 U.S.C.
§ 12101
et seq.,
the Indiana Civil Rights Law, the Employee Retirement Income Security
Act,
29 U.S.C. § 1001 et
seq.,
the United States Constitution, the Indiana Constitution, any and
all
amendments to said statutes, and any other federal, state or local
statute
or law, ordinance or regulation, dealing in any way with employment
or
employment-related benefits and all claims for costs and attorneys’ fees;
and (c) all claims Xxxxxxxxx may have against BASi arising out of
Xxxxxxxxx employment and/or termination of employment with BASi.
Xxxxxxxxx
agrees and understands that any claims she may have under the
aforementioned laws, statutes or any other federal, state or local
law,
ordinance, rule or regulation are effectively waived by this Agreement.
Xxxxxxxxx further acknowledges and agrees that she has received all
compensation from XXXx to which she is entitled on account of her
service
prior to her separation effective August 28, 2007, including pay
for
accrued but unused vacation. XXXx and Xxxxxxxxx acknowledge and agree,
however, that the release/waiver of claims set forth in this paragraph
4
does not release, affect or relinquish (i) any of Xxxxxxxxx'x rights
as a
shareholder of BASi, (ii) any of Xxxxxxxxx'x rights (or BASi's
obligations) under this Agreement or any other agreement between
BASi and
Xxxxxxxxx executed concurrently with or subsequent to this Agreement,
(iii) any rights Xxxxxxxxx may have with respect to any vested benefits
under any of the Company's employee retirement and/or welfare benefit
plans, including without limitation under any applicable 401(k) plan
or
(iv) any rights Xxxxxxxxx may have for indemnification of any third-party
claim relating to Xxxxxxxxx'x service as an employee, officer and/or
director of BASi. Xxxxxxxxx understands that the signing of this
Agreement
prevents her from making any further claims against XXXx in connection
with her employment and the termination of her employment with XXXx.
Xxxxxxxxx agrees not to bring any lawsuits against XXXx relating
to the
claims she has given up, released and waived, nor will she allow
any suit
to be brought on her behalf.
|
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
September
28, 2007
Page
3
| 5. |
BASi
Claims against Xxxxxxxxx.
XXXx represents and acknowledges that its senior management is unaware
of
any claims it may have against Xxxxxxxxx as of the date of this Agreement,
including claims arising out of her service as an employee, officer
and/or
member of the Board of Directors.
|
| 6. |
Waiver
of Re-employment.
Xxxxxxxxx waives any right or claim of reinstatement to employment
with
XXXx and agrees not to seek further employment with XXXx. If Xxxxxxxxx
does seek employment with BASi, BASi is under no obligation to consider
her for employment.
|
| 7. |
Payments
and Benefits to be Provided to Xxxxxxxxx.
In exchange for and in consideration of Xxxxxxxxx'x agreement to
release
claims against XXXx as described in paragraph 4 and in consideration
of
the other promises contained in this Agreement, XXXx agrees as
follows:
|
| x. |
XXXX
agrees to pay Xxxxxxxxx a xxxxxxxxx benefit of One Hundred Seventy-Five
Thousand Dollars and No Cents ($175,000.00), less tax and other deductions
required by law. One half of this amount (Eighty-Seven Thousand Five
Hundred Dollars and No Cents ($87,500.00), will be paid in a lump-sum
payment on XXXx's first regular payroll date following the Release
Effective Date. The remaining half of this amount will be paid in
six (6)
equal monthly installments beginning in November 2007 and ending
in April
2008. Unless Xxxxxxxxx notifies XXXx’s payroll department of a different
bank account, these amounts will be deposited in the bank account
that
Xxxxxxxxx has previously designated for direct
deposit;
|
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
September
28, 2007
Page
4
| b. |
Additionally,
BASi shall pay Xxxxxxxxx an additional monthly payment equal to the
monthly premium cost to Xxxxxxxxx to continue health insurance coverage
for Xxxxxxxxx and any covered dependents under BASi’s group health
insurance program pursuant to the federal law known as COBRA (the
“Monthly
Payment”) for a period of twelve (12) consecutive months. Xxxxxxxxx may
use the Monthly Payment to pay COBRA premiums or for any other purpose.
The first Monthly Payment shall be paid to Xxxxxxxxx on XXXx’s first
regular payroll date following the Release Effective Date and the
Monthly
Payments shall continue thereafter for eleven (11) consecutive months.
These payments will be deposited in the bank account that Xxxxxxxxx
has
previously designated for direct deposit, unless Xxxxxxxxx notifies
BASi's
payroll department of a different bank
account.
|
| x. |
Xxxxxxxxx
agrees that all of her stock options, including vested and unvested
stock
options, shall be irrevocably terminated and of no further effect
as of
the date hereof.
|
| x. |
Xxxxxxxxx,
if she so desires, shall promptly contact the National Life Insurance
Company to convert the life insurance on Xxxxxxxxx'x life to Xxxxxxxxx.
BASi shall provide reasonable assistance to Xxxxxxxxx to support
any such
conversion of such life insurance policy to an individual policy
(if such
right is available under the policy). BASi shall have no obligation
to
fund this policy following Xxxxxxxxx'x separation effective as of
August
28, 2007.
|
| 8. |
Acknowledgement.
Xxxxxxxxx acknowledges that she is not entitled to any of the payments
and
benefits listed in paragraphs 6(a)-(b) of this Agreement unless she
signs this Agreement.
|
| 9. |
Non-Disparagement.
In consideration of the promises made in this Agreement, Xxxxxxxxx
and
XXXx each agree that she/it shall not make any false, negative or
disparaging remarks or comments to any person and/or entity about
the
other party to this Agreement, nor shall Xxxxxxxxx or BASi make any
statement that may subject the other party to potential embarrassment,
humiliation or any other negative consequence; provided, however,
nothing
in this paragraph 9 shall prohibit either party from making any
statements as may be required or compelled by law, including without
limitation pursuant to any judicial or administrative process. The
Parties
agree to the issuance of the press release/media statement attached
hereto
as Exhibit A, and each party shall have the right to make statements
consistent with such press release/media
statement.
|
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
September
28, 2007
Page
5
| 10. |
Confidentiality.
The parties understand that BASi will be required to file this Agreement
with the SEC as part of its reporting obligations. Otherwise, BASi
and
Xxxxxxxxx each agree to keep strictly confidential and not to disclose
any
of the terms of this Agreement to any third parties; provided, however,
(a) any Party may disclose the terms of this Agreement as may be
required
by applicable law or by judicial or administrative process; (b) any
Party
may disclose the terms of this Agreement in any action or proceeding
to
enforce this Agreement or relating to the enforcement of this Agreement;
(c) BASi may disclose the terms of this Agreement to its management,
its
counsel and its accountants; and (d) Xxxxxxxxx may disclose the terms
of
this Agreement to her immediate family, her counsel, her accountants
and
her financial advisors, provided that such individuals in turn agree
to
keep same confidential and not make any disclosures in any manner
that is
inconsistent with the terms of this
Agreement.
|
| 11. |
Consultation
with Attorney.
Xxxxxxxxx agrees that she has read this Agreement and the releases
contained herein, that she understands all of the terms hereof, that
she
has not been coerced, threatened or intimidated into signing this
Agreement, and that she executes this Agreement voluntarily and with
full
knowledge of its meaning and consequences and that she has had sufficient
opportunity to consult with her attorney regarding this Agreement.
Xxxxxxxxx further acknowledges that XXXx hereby advises her that
she
should consult with an attorney before executing this
Agreement.
|
| 12. |
Severability.
Xxxxxxxxx agrees that if she breaches any obligation set forth in
this
Agreement, BASi shall have the right to set off an amount from future
payments described in this Agreement equal to the damages caused
by such
breach, in addition to any other remedies to which BASi may be entitled
under law. The Parties further understand and agree that in the event
that
this Agreement is ever held to be invalid or unenforceable, in whole
or in
part, as to any particular type of claim or charge or as to any particular
circumstances, this Agreement shall remain fully valid and enforceable
as
to all other claims, charges and
circumstances.
|
| 13. |
Restrictive
Covenants.
Xxxxxxxxx agrees that for the two (2) years immediately following
the
effective date hereof (which, in the event of a breach of this
Paragraph 13
by
Xxxxxxxxx, shall be extended automatically by a number of days equal
to
the number of days during which the breach exists) (the “Restricted
Period”),
Xxxxxxxxx shall not directly or
indirectly:
|
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
September
28, 2007
Page
6
| a. |
Customer
Non-Solicitation.
Contact, solicit or communicate with any Customer of the Company,
or any
Prospective Customer of the Company, for the purpose
of:
|
| i. |
diverting
or influencing or attempting to divert or influence any Business
of the
Company to a Competitor of the Company;
|
| ii. |
marketing,
selling, distributing, leasing or providing any products or services
in
competition with the services or products offered by the Company
with
respect to the Company’s Business; or
|
| iii. |
otherwise
interfering in any fashion with the Company’s Business or the Company's
relationship with any of its Customers or Prospective Customers with
respect to the Company’s Business.
|
| b. |
Employee
Non-Solicitation.
Solicit, hire or employ any person who is then an employee of the
Company
or in any way (a) cause or assist or attempt to cause or assist any
employee to leave the Company or (b) directly or indirectly seek to
solicit, induce, bring about, influence, promote, facilitate, or
encourage
any employee of the Company to leave the Company.
|
| c. |
Activities
Not Prohibited.
The restrictions of this Paragraph 13 shall not be deemed to prevent
Xxxxxxxxx from owning (1) not
more than 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 of the Securities
Exchange Act of 1934, as amended, and/or (2) any issued and
outstanding securities of BASi.
|
| d. |
Modification.
In the event a court of competent jurisdiction determines that any
of the
foregoing restrictions are unreasonable in terms of geographic scope
or
otherwise then Xxxxxxxxx and the Company agree that the court is
hereby
authorized to reduce the scope of said restriction through application
of
the blue pencil doctrine and enforce this Paragraph 13 as so reduced.
If
any sentence, word or provision of this Paragraph 13 shall be determined
to be unenforceable, the same shall be severed herefrom and the remainder
shall be enforced as if the unenforceable sentence, word or provision
did
not exist. Xxxxxxxxx acknowledges that all of the provisions contained
in
this Agreement, including the restrictions of the covenant not to
compete,
are reasonable and necessary to protect the legitimate interests
of the
Company.
|
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
September
28, 2007
Page
7
| e. |
Definitions.
|
| i. |
Competitor.
A
“Competitor” shall mean any person or entity that provides research or
development resources to pharmaceutical, medical device or biotechnology
companies, or that provides outsourced drug development services,
biological services or products used in the development of pharmaceutical
products or in pharmaceutical or biological research and competes
with the
Company's Business.
|
| ii. |
Customer.
A
“Customer” of the Company is any person or entity which, within the
twenty-four (24) month period preceding the date hereof, used, leased,
received or purchased or contracted to use, lease, receive or purchase
any
of Company’s products or services.
|
| iii. |
Prospective
Customer.
A
“Prospective Customer” of the Company is any person or entity to which,
within the twenty-four (24) month period preceding the date hereof,
BASi
submitted a proposal for services.
|
| iv. |
Business.
The "Business" is BASi's products and services offered as an alternative
to its clients' internal product development, compliance, and quality
control programs and outsourced drug development services, biological
services and products useful in developing pharmaceutical products
and
performing pharmaceutical and biological research; provided, however,
(A)
the “Business” includes only those products and services that BASi is
providing as of the date of separation of Xxxxxxxxx’x employment with
BASi, and (B) the "Business" does not include the development or
commercialization of the technology that is subject to the License
Agreement entered concurrently herewith between BASi and Phlebotics,
Inc.
|
| 14. |
Acceptance
of Agreement.
To accept the terms of this Agreement, Xxxxxxxxx must deliver this
Agreement, after it has been signed and dated by her, to the undersigned
in an envelope marked “Personal and Confidential" or to BASi's
counsel.
|
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
September
28, 2007
Page
8
| 15. |
Representations.
XXXx and Xxxxxxxxx each represent and warrant that in the making
and
execution of this Agreement, it/she is not relying on any representation,
statement, or assertion of fact or opinion made by any agent, attorney,
employee, or representative of the persons, parties, or corporations
being
released herein, and it/she hereby waives any right to rely upon
all prior
agreements and/or oral representations made by any agent, attorney,
employee, or representative of such persons, parties, or corporations
even
though made for the purpose of inducing it/her to enter into this
Agreement.
|
| 16. |
Return
of BASi’s Property.
Xxxxxxxxx hereby represents and warrants that she has returned to
BASi all
of XXXx’s property that was in her possession or control or that any such
property will be returned to BASi by October 5, 2007. This includes,
but
is not limited to, keys, credit cards, phone cards, cellular telephones,
pages, directories, computer hardware and software, books, documents,
memoranda, and all other records, and copies
thereof.
|
| 17. |
Cooperation
and Transition Assistance.
Xxxxxxxxx agrees that for a period of sixty (60) days following the
date
hereof (the "Cooperation Period") she will be available to assist
BASi
with transitional matters relating to her former duties with XXXx,
without
additional compensation, provided that Xxxxxxxxx'x obligation to
provide
assistance shall consist primarily of making herself reasonably available,
as BASi may reasonably request, to respond to questions and confer
with
XXXx's officers or other designated representatives on work transition
matters and nothing herein shall preclude Xxxxxxxxx from engaging
in other
full-time employment or business activities during the Cooperation
Period.
XXXx, in turn, agrees to allow Xxxxxxxxx to serve out her current
terms on
such boards (excluding the Board of Directors of BASi and all of
its
affiliates and subsidiaries) on which she currently sits, with the
express
understanding that she shall have no authority to speak or act on
behalf
of BASi in those capacities and may not represent that she has such
authority.
|
| 18. |
Miscellaneous.
The Parties agree that this Agreement is deemed made and entered
into in
the State of Indiana and in all respects shall be interpreted, enforced
and governed under the laws of the State of Indiana, unless otherwise
preempted by federal law. Jurisdiction and venue for litigation of
any
dispute, controversy, or claim arising out of or in connection with
this
Agreement shall lie exclusively in the federal or state courts in
Tippecanoe County, Indiana, and the Parties hereby consent to service
of
process from said courts. This Agreement shall inure to the benefit
of and
may be enforced by, and shall be binding on the Parties and their
heirs,
executors, administrators, personal representatives, assigns, and
successors in interest. The language of all parts of this Agreement
shall
be in all cases construed as a whole, according to its fair meaning,
and
not strictly for or against the drafter.
|
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
September
28, 2007
Page
9
| 19. |
Time
to Consider this Agreement.
Xxxxxxxxx understands that she has been given forty-five (45) days
from
the original date of delivery of this Agreement to consider the terms
of
this Agreement and that, following discussions between counsel for
parties, such consideration period has been extended to and including
October 5, 2007. Xxxxxxxxx understands that she may sign this Agreement
at
any time during the forty-five day period, as extended. Xxxxxxxxx
understands that she may revoke this Agreement if she so chooses
until
seven (7) days after the date of execution. Xxxxxxxxx further understands
that this Agreement will not become effective or enforceable and
that
BASi’s obligations in paragraph 6 of this Agreement to make payments
and provide benefits will not become effective or enforceable until
seven
(7) days from the date of Xxxxxxxxx'x execution of this Agreement
and
provided that the Agreement is not revoked during such seven day
period
("Release Effective Date").
|
| 20. |
OWBPA
Disclosures.
Xxxxxxxxx understands that the claims released by this Agreement
include
claims under the Age Discrimination in Employment Act, as modified
by the
Older Worker Benefit Protection Act ("OWBPA"). Xxxxxxxxx acknowledges
that
she has been advised by XXXx to consult with an attorney concerning
the
requirements of the OWBPA. By her signature below, Xxxxxxxxx signifies
her
understanding that this Agreement satisfies the requirements of the
OWBPA.
In particular, Xxxxxxxxx acknowledges that she has been advised (a)
that
the only employees being separated and offered severance benefits
at this
time are Xxxxxxxxx and Xxxxx Xxxxxxxxx; (b) that there are no other
employees in similar job classifications to these two individuals;
(c)
that Xxxxxxxxx must sign this Agreement within the time limits described
above in order to be eligible for benefits under it; and (d) that
no
further disclosures are required under the
OWBPA.
|
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
September
28, 2007
Page
10
| Sincerely, | ||
| Bioanalytical Systems, Inc. | ||
| |
|
|
| By: | /s/ X.X. Xxxxxxxx | |
|
Xxxxxxx X. Xxxxxxxx |
||
| President and Chief Executive Officer | ||
Xxxxxxx
X. Xxxxxxxxx
c/o
Xxxxx
Xxxxx
September
28, 2007
Page
11
My
signature below represents my acceptance of all terms and conditions contained
in this Agreement.
|
/s/
Xxxxxxx X. Xxxxxxxxx
|
September
28, 2007
|
|
|
Xxxxxxx X. Xxxxxxxxx |
Date |
EXHIBIT
A
For
more information:
Xxxxxxx X. Xxxxxxxx
765.463.4527
xxxxxxxxx@xxxxxxxxxxxxx.xxx
BASi
Announces Resignations of Xxxxx X. Xxxxxxxxx, Ph.D. and Xxxxxxx X. Xxxxxxxxx
and
Selection of Xxxxx X. Xxxxxxxxx as Chairman Emeritus of the Board of
Directors
WEST
LAFAYETTE, IN, October 2, 2007 — Bioanalytical Systems, Inc. (Nasdaq: BASI)
announced today that Xxxxx X. Xxxxxxxxx, Ph.D. and Xxxxxxx X. Xxxxxxxxx have
resigned from the Board of Directors of BASi. Xx. Xxxxxxxxx has also resigned
as
the Chief Scientific Officer and Chairman of the Board, and Xxx. Xxxxxxxxx
resigned from the offices of Vice President, Secretary and Director of Research.
In connection with their resignations, XXXx has entered into a severance
agreement with each of Xx. Xxxxxxxxx and Xxx. Xxxxxxxxx, as well as a license
agreement for a new technology which Xxx. Xxxxxxxxx has developed while with
XXXx. XXXx also named Xx. Xxxxxxxxx to be the Chairman Emeritus of its Board
of
Directors. This completes the negotiations regarding the departures of Dr.
and
Xxx. Xxxxxxxxx that were previously disclosed by XXXx.
Xxxxxxx
X. Xxxxxxxx, President and Chief Executive Officer of BASi, noted today that
"all of the people of BASi wish to express their thanks to Xxxx and Xxxxxxx
Xxxxxxxxx for the leadership they have provided over their years with XXXx.
We
acknowledge all of the fine work that Xxxx and Xxxxxxx have accomplished
for
BASi. On behalf of the Board, I want to thank Xxxx and Xxxxxxx for their
many
years of service with XXXx. We know that they have had the best interests
of
BASi in mind throughout their tenures."
Xx.
Xxxxxxxxx commented, “Xxxxxxx and I had a wonderful thirty year run at BASi and
it is a good time for us to move on to new opportunities. Our strengths and
passions are on the technical side and we are excited to apply our skills
to
several entrepreneurial activities."
BASi
is a
contract research and research products company providing services and
laboratory instruments to the world’s leading drug development companies and
life science research organizations. The Company focuses on developing
innovative services and products that increase efficiency and reduce costs
associated with taking new drugs to market. Visit xxx.xxxxxxxxxxxxx.xxx for
more
about BASi.
This
release contains forward-looking statements that are subject to risks and
uncertainties including, but not limited to, risks and uncertainties related
to
management transition matters, the development of products and services,
changes
in technology, industry standards and regulatory standards, and various market
and operating risks detailed in the company’s filings with the Securities and
Exchange Commission.
#
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