September
28, 2007
VIA E-MAIL and OVERNIGHT
COURIER
Peter
T. Kissinger, Ph.D.
c/o
David Given
Baker
Daniels LLP
600
East 96
th Street,
Suite 600
Indianapolis,
IN 46240
Re:
Severance Agreement and Release of All
Claims
Dear
Peter:
As
communicated to you on June 29, 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 and given continued
access to Company facilities and systems, in exchange for
certain obligations on your part. 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 BASi,
BASi 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.
BASi
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.
| 1. |
Definitions .
The terms “you” and “your” and
“Kissinger” mean Peter T. Kissinger,
and
anyone who has or obtains any legal right or claims through him.
“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 BASi.
“Agreement” means this letter agreement which contains
the terms of the severance package and which includes a release of
all claims arising out of Kissinger employment relationship with
BASi and the termination of the employment relationship. “The
Parties” means Kissinger and BASi.
|
Peter
T. Kissinger, Ph.D.
c/o
David Given
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 Kissinger that he acted wrongfully
with respect to BASi or any other person, or that BASi has any
rights whatsoever against Kissinger.
|
| 3. |
Resignation. Pursuant
to this Agreement, Kissinger will be deemed to have resigned his
employment and his position as an officer of BASi effective as of
August 28, 2007. Kissinger further agrees to resign his membership
on the BASi Board of Directors immediately following his
appointment to an unpaid Chairman Emeritus position.
|
| 4. |
Claims released by Kissinger. By
signing this Agreement, Kissinger unconditionally and fully
releases and forever discharges BASi from (a) any and all possible
claims, known or unknown, arising out of or from his 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 Kissinger 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 Kissinger may
have against BASi arising out of Kissinger employment and/or
termination of employment with BASi. Kissinger agrees and
understands that any claims he 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.
Kissinger further acknowledges and agrees that he has received all
compensation from BASi to which he is entitled on account of his
service prior to his separation effective August 28, 2007,
including pay for accrued but unused vacation. BASi and Kissinger
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 Kissinger's rights as a shareholder of BASi,
(ii) any of Kissinger's rights (or BASi's obligations) under this
Agreement or any other agreement between BASi and Kissinger
executed concurrently with or subsequent to this Agreement, (iii)
any rights Kissinger 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 Kissinger may have for
indemnification of any third-party claim relating to Kissinger's
service as an employee, officer and/or director of BASi. Kissinger
understands that the signing of this Agreement prevents him from
making any further claims against BASi in connection with his
employment and the termination of his employment with BASi.
Kissinger agrees not to bring any lawsuits against BASi relating to
the claims he has given up, released and waived, nor will he allow
any suit to be brought on his behalf.
|
Peter
T. Kissinger, Ph.D.
c/o
David Given
September
28, 2007
Page
3
| 5. |
BASi Claims against Kissinger. BASi
represents and acknowledges that its senior management is unaware
of any claims it may have against Kissinger as of the date of this
Agreement, including claims arising out of his service as an
employee, officer and/or member of the Board of
Directors.
|
| 6. |
Waiver of Re-employment .
Kissinger waives any right or claim of reinstatement to employment
with BASi and agrees not to seek further employment with BASi. If
Kissinger does seek employment with BASi, BASi is under no
obligation to consider him for employment.
|
| 7. |
Payments and Benefits to be Provided to Kissinger
.
In exchange for and in consideration of Kissinger's agreement to
release claims against BASi as described in paragraph 4 and in
consideration of the other promises contained in this Agreement,
BASi agrees as follows:
|
| a. |
BASI
agrees to pay Kissinger a severance 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 BASi'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 Kissinger notifies BASi’s payroll department of a
different bank account, these amounts will be deposited in the bank
account that Kissinger has previously designated for direct
deposit;
|
Peter
T. Kissinger, Ph.D.
c/o
David Given
September
28, 2007
Page
4
| b. |
Additionally,
BASi shall pay Kissinger an additional monthly payment equal to the
monthly premium cost to Kissinger to continue health insurance
coverage for Kissinger 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. Kissinger may use the Monthly
Payment to pay COBRA premiums or for any other purpose. The first
Monthly Payment shall be paid to Kissinger on BASi’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 Kissinger has previously designated for direct
deposit, unless Kissinger notifies BASi's payroll department of a
different bank account.
|
| c. |
Kissinger
agrees that all of his stock options, including vested and unvested
stock options, shall be irrevocably terminated and of no further
effect as of the date hereof.
|
| d. |
Kissinger,
if he so desires, shall promptly contact the National Life
Insurance Company to convert the life insurance on Kissinger's life
to Kissinger. BASi shall provide reasonable assistance to Kissinger
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
Kissinger's separation effective as of August 28,
2007.
|
| 8. |
Acknowledgement .
Kissinger acknowledges that he is not entitled to any of the
payments and benefits listed in paragraphs 7(a)-(b) of this
Agreement unless he signs this Agreement.
|
| 9. |
Non-Disparagement .
In consideration of the promises made in this Agreement, Kissinger
and BASi each agree that he/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 Kissinger 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
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