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EXHIBIT 10.28
1997 BIOANALYTICAL SYSTEMS, INC.
OUTSIDE DIRECTOR STOCK OPTION PLAN
1. DEFINITIONS. The following terms shall have the meanings
hereinafter set forth:
(a) "Affiliate" means a corporation which is a parent or
subsidiary corporation of the Company, or a corporation or a
parent or a subsidiary corporation of the Company issuing or assuming
the options issued under the Plan in a transaction in which Section
424(g) of the Code applies.
(b) "Board of Directors" means the board of directors of
the Company, as it shall exist from time to time.
(c) "Code" means the Internal Revenue Code of 1986, as it
shall be amended from time to time.
(d) "Committee" means the director stock option committee
administering the Plan as provided in paragraph 3 hereof.
(e) "Common Shares" means the Common Shares of the Company.
(f) "Company" means Bioanalytical Systems, Inc., an
Indiana corporation.
(g) "Nonstatutory Stock Option" means an option
which is not an incentive stock option within the meaning of
Section 422 of the Code and which is governed by Section 83 of the
Code for Federal income tax purposes.
(h) "Optionee" means an Outside Director granted an option
under the Plan.
(i) "Outside Director" means any director of the Company
or an Affiliate who is not employed by the Company or any Affiliate in
any capacity.
(j) "Plan" means this 1997 Bioanalytical Systems, Inc.
Outside Director Stock Option Plan.
2. PURPOSE. This Plan is intended to be an incentive to, and to
encourage ownership of the Common Shares by, Outside Directors of the Company
and its Affiliates in order to provide such Outside Directors with a more
direct and proprietary interest in the welfare and success of the Company and
to encourage their continuation as directors of the Company. The Plan is
further intended to promote continuity of membership on the Board of Directors
and to increase the incentive to promote the welfare of the Company by those
who are primarily responsible for shaping and
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carrying out the long-term plans and objectives of the Company, thereby
furthering and securing the Company's continued growth and financial success.
It is contemplated that only Nonstatutory Stock Options will be granted under
the Plan.
3. ADMINISTRATION. The Plan shall be administered by the
Committee which shall consist of three or more members of the Board of
Directors who are appointed from time to time by the Board of Directors. The
Board of Directors may from time to time remove members from, or add members
to, the Committee. Vacancies on the Committee, howsoever caused, shall be
filled by the Board of Directors. The Committee shall have the power (a) to
interpret and construe the provisions of the Plan or any option granted under
it, and such interpretation or construction shall be final and binding; (b) to
select Outside Directors to whom grants of options under the Plan shall be made
as more particularly set forth in paragraph 4 hereof; (c) to determine the
terms and conditions of each option granted hereunder; (d) to determine the
time at which such grants shall be made and the number of Common Shares to be
optioned under such grant; and (e) to make any other determinations regarding
the Plan which are not otherwise expressly provided herein. The Committee may
prescribe, amend and rescind rules and regulations relative to the Plan or its
construction or interpretation. A majority of the Committee shall constitute a
quorum. All determinations of the Committee shall be made by the vote of a
majority of its members; provided, however, that if there are fewer than three
(3) members of the Committee at any time, all determinations shall be a joint
determination of its members. No member of the Committee shall be liable for
any action or determination made in good faith.
4. ELIGIBILITY. Only those persons who are Outside Directors
shall be eligible to participate in the Plan. The Committee shall determine
from time to time the particular Outside Directors who shall be eligible to
participate in the Plan and the extent of their participation therein.
5. SHARES. The shares subject to the options and other provisions
of the Plan shall be the Company's authorized, but unissued, or reacquired
Common Shares. The total number of the Common Shares on which options may be
granted under the Plan shall not exceed in the aggregate five thousand (5,000)
shares, except as such number of shares shall be adjusted in accordance with
the provisions set forth in paragraph 6(g) hereof. 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 Common Shares
allocable to the unexercised portion of such option may again be subject to an
option under the Plan. During the period that any options granted hereunder
are outstanding, the Company shall reserve and keep available such number of
Common Shares as will be sufficient to satisfy all outstanding, unexercised
options.
6. TERMS AND CONDITIONS OF OPTIONS. Options granted pursuant to
the Plan shall be evidenced by agreements in such form as the Committee shall
from time to time prescribe, which agreements shall comply with and be subject
to the following terms and conditions:
(a) MEDIUM AND TIME OF PAYMENT. The option price
shall be payable in United States dollars upon the exercise of the
option and shall be paid (i) in cash; (ii) by
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certified check or by bank cashier's check; (iii) through the
tender to the Company of Common Shares of the Company or through the
withholding of Common Shares of the Company that are subject to the
option, which Common Shares shall be valued, for purposes of
determining the extent to which the purchase price has been paid, at
their fair market value on the date of exercise as determined in
Section 6(c); or (iv) or by a combination of (i), (ii) or (iii);
provided, however, that the Committee may in its discretion impose and
set forth in the option agreement pertaining to an option such
limitations or prohibitions on the use of Common Shares to exercise
options as it deems appropriate. Fair market value of any Common
Shares surrendered or withheld shall be determined by the Committee in
the same manner that it is determined in establishing option prices.
Payment of the option price shall be accompanied by a written
subscription agreement in a form to be prescribed by the Committee.
(b) NUMBER OF SHARES; DATE OF GRANT. The option
agreement shall state the total number of shares to which it
pertains, and the date of the grant of the option. The Committee may
prescribe in the option agreement a minimum number of Common Shares
with respect to which an option may be exercised, in whole or in part.
(c) OPTION PRICE. The option price shall be an
amount per share not less than the fair market value per share
of the Common Shares on the date of grant of the option. Fair market
value shall mean, if the price is so reported, the closing price for
the Common Shares on the National Association of Securities Dealers
Automated Quotation System or any exchange on which the Common Shares
are then traded, as reported in The Wall Street Journal (Midwest
Edition). If the price of Common Shares 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.
(d) TERM OF OPTIONS. Each option granted under
the Plan shall expire within the period prescribed in the
agreement relating thereto, which shall not be more than ten (10)
years from the date the option is granted.
(e) TIME OF EXERCISE. Each option granted pursuant to the
Plan shall be exercisable in four equal installments. The option
may be exercised as to the shares covered by the first installment
from and after the second anniversary of the grant of the option, with
second, third and fourth installments becoming exercisable on the
three succeeding anniversary dates; provided, however, that any such
limitation on the exercise of an option contained in an option
agreement may be rescinded, modified or waived by the Committee, in
its sole discretion, at any time and from time to time after the date
of grant of such option so as to accelerate the time in which the
option may be exercised. Except as specifically restricted by the
provisions of this paragraph 6(e) or by the Committee acting
hereunder, any option may be exercised in whole at any time or in part
from time to time during its term.
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(f) CESSATION OF SERVICE AS A DIRECTOR. In the event an
Optionee ceases to serve as a director of the Company or an
Affiliate all options outstanding in the hands of the Optionee shall
terminate immediately as to any unexercised portion thereof; provided,
however, that if any cessation of service is due to retirement with
the consent of the Company or is due to permanent and total
disability, the Optionee shall have the right, subject to the
provisions of paragraphs 6(d) and 6(e) hereof, to exercise the option,
with respect to the Common Shares for which it could have been
exercised on the effective date of the Optionee's cessation of
service, at any time within three (3) months after such cessation of
service due to retirement with the consent of the Company or at any
time within twelve (12) months after such cessation of service due to
permanent and total disability; and provided further, that if the
Optionee shall die while serving as a director of the Company or an
Affiliate, the Optionee's personal representative shall have the
right, subject to the provisions of paragraphs 6(d) and 6(e) hereof,
to exercise the option with respect to the Common Shares for which the
option could have been exercised on the date of death, at any time
within twelve (12) months from the date of the Optionee's death.
Whether a cessation of service is a retirement with the consent of the
Company or due to permanent and total disability, and whether an
authorized leave of absence or absence on military or government
service shall be deemed to constitute cessation of service for the
purposes of the Plan, shall be determined by the Committee in its sole
discretion, which determination shall be final and conclusive.
(g) RECAPITALIZATION. The aggregate number of Common
Shares on which options may be granted hereunder, the number of
Common Shares covered by each outstanding option, and the price per
share set forth in each option agreement, shall all be proportionately
adjusted for any increase or decrease in the number of issued Common
Shares resulting from a subdivision or consolidation of shares of the
Company or any other capital adjustment of the Company, the payment of
a share dividend, a share split or any other increase or decrease in
the Common Shares effected without receipt of consideration by the
Company. In the event that, prior to the delivery by the Company of
the Common Shares remaining unexercised under any outstanding option
hereunder, there shall be a capital reorganization or reclassification
of the capital of the Company resulting in a substitution of other
shares for the Common Shares, there shall be substituted the number of
substitute shares which would have been issued in exchange for the
Common Shares then remaining under the option if such Common Shares
had been then issued and outstanding.
(h) MERGER, DISSOLUTION. If the Company shall be a party
to any merger or consolidation, the Company shall have the
right to terminate any option outstanding on thirty (30) days' written
notice; provided, however, if such merger or consolidation is not
consummated within 180 days from the date of the aforementioned
notice, all options terminated shall be deemed to have been
continuously in effect since the date of execution thereof. In the
event of a dissolution or liquidation of the Company, the Company
shall give each optionee thirty (30) days written notice specifying
the effective date thereof. Every unexercised option outstanding
hereunder on the date set by the Company as the effective
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date of the dissolution or liquidation shall be deemed to be
terminated upon such dissolution or liquidation.
(i) NONASSIGNABILITY. No option granted under the Plan
shall be assignable or transferable except by will or under the
laws of descent and distribution. During the lifetime of an Optionee,
the option shall be exercisable only by the Optionee.
(j) 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 stock exchange on which shares of the
Company of the same class are then listed and (b) the completion of
such registration or other qualification of such shares under any
state or Federal law, rule or regulation or the rules and regulations
of any exchange upon which the Common Shares are treated as the
Company shall determine to be necessary or advisable, which
registration or other qualification the Company shall use its best
efforts to complete; provided, however, a person purchasing Common
Shares pursuant to the Plan has no right to require the Company to
register the Common Shares under federal or state securities laws at
any time. Any person purchasing Common Shares pursuant to the Plan
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, in light of the existence or
non-existence with respect to such shares of an effective registration
under the Securities Act of 1933, as amended, or any similar state
statute, to issue the shares in compliance with the provisions of
those or any comparable acts.
(k) RIGHTS AS A SHAREHOLDER. An Optionee shall have no
rights as a shareholder with respect to Common Shares covered
by an option until the date of issuance of a certificate to the
Optionee. The certificate shall not be issued until the Optionee has
exercised the option and has fully paid for the Common Shares acquired
thereby. No adjustment will be made for dividends or other rights for
which the record date is prior to the date such certificate is issued.
(l) OTHER PROVISIONS. The option agreements entered into
under the Plan shall contain such other provisions,
limitations, restrictions and requirements as the Committee shall deem
advisable.
7. TERM OF PLAN. The Plan shall become effective upon the date
the Plan is adopted by the Board of Directors. The Plan shall terminate ten
(10) years after the date the Plan is adopted by the Board of Directors, or on
such earlier date as the Board of Directors may determine. No option shall be
granted under the Plan after such termination date.
8. AMENDMENT OF THE PLAN. The Board of Directors may from time to
time, alter, amend, suspend, or discontinue the Plan with respect to any Common
Shares as to which options have not been granted; provided, however, that no
action may be taken hereunder which
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would alter or impair any of the rights or obligations of the Company or any
Optionee with respect to any outstanding option without the consent of the
Optionee thereof.
9. APPLICATION OF FUNDS. The proceeds received by the Company
from the sale of Common Shares pursuant to options granted hereunder will be
used for general corporate purposes.
10. NO OBLIGATION TO EXERCISE OPTION. The granting of an option
hereunder shall impose no obligation upon the Optionee to exercise such an
option.
11. NO RIGHT TO REELECTION. Neither the adoption of the Plan, the
granting of an option hereunder, nor any other action taken relating to the
Plan shall impose any obligation on the Company or any Affiliate or the Board
of Directors of either to nominate any Outside Director for reelection as a
director by the shareholders of the Company or any Affiliate.
12. APPLICABILITY OF AMENDMENTS. All outstanding options shall be
deemed to be amended so as to include, to the extent applicable thereto, any
amendments made to the Plan subsequent to the granting of such options.
13. WITHHOLDINGS. The Committee shall have the right to require
the Optionee to remit to the Company amounts sufficient to satisfy any
applicable withholding requirements set forth in the Code or under state or
local law relating to options granted to the Optionee. The Company shall have
the right, to the extent permitted by law, to deduct from any payment of any
kind otherwise due to an Optionee who exercises an option any federal, state or
local taxes of any kind required by law to be withheld with respect to the
Common Shares subject to such option.
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