EXHIBIT
4.1
BIOANALYTICAL SYSTEMS,
INC.
2008 STOCK OPTION
PLAN
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1.
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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.
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2.
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Definitions/Rules of
Construction .
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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
