-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GrVSPV5QXlB7MU54SHMH/DD/xfqRY5FfgKcGP7cMLqri6pKzFBZ6hf34IajUN6FZ jX6R4V1FS4kTIEBkKniekg== 0000911916-09-000060.txt : 20090406 0000911916-09-000060.hdr.sgml : 20090406 20090406102023 ACCESSION NUMBER: 0000911916-09-000060 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20090406 DATE AS OF CHANGE: 20090406 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BIOANALYTICAL SYSTEMS INC CENTRAL INDEX KEY: 0000720154 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 351345024 STATE OF INCORPORATION: IN FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-52991 FILM NUMBER: 09734067 BUSINESS ADDRESS: STREET 1: 2701 KENT AVE CITY: WEST LAFAYETT STATE: IN ZIP: 47906-1382 BUSINESS PHONE: 3174634527 MAIL ADDRESS: STREET 1: 2701 KENT AVENUE CITY: WEST LAFAYETTE STATE: IN ZIP: 47906-1382 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KISSINGER PETER CENTRAL INDEX KEY: 0001053615 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 111 LORENE PLACE CITY: WEST LAFAYETTE STATE: IN ZIP: 47906 SC 13D 1 kissinger_13d.txt SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. __)* Bioanalytical Systems, Inc. - ------------------------------------------------------------------------------- (Name of Issuer) Common Shares - ------------------------------------------------------------------------------- (Title of Class of Securities) 09058M 10 3 - ------------------------------------------------------------------------------- (CUSIP Number) Peter T. Kissinger, Ph.D. 111 Lorene Place West Lafayette, IN 47906-8620 Copy to: James A. Aschleman Baker & Daniels LLP 900 E. 96th Street, Suite 600 Indianapolis, IN 46240 - ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 6, 2009 - ------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-l(e), 240.13d-l(f) or 240.13d-1(g), check the following box. |X| Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 09058M 10 3 - ------------------------------------------------------------------------------- 1. Name of Reporting Person. Peter T. Kissinger, Ph.D. - ------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) |X| (b) |_| - ------------------------------------------------------------------------------- 3. SEC Use Only - ------------------------------------------------------------------------------- 4. Source of Funds (See Instructions): PF (see Item 3) - ------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) |_| - ------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: United States - ------------------------------------------------------------------------------- Number of 7. Sole Voting Power 427,747 Shares ----------------------------------------------------- Beneficially Owned by Each 8. Shared Voting Power 848,220 (1) Reporting ----------------------------------------------------- Person With 9. Sole Dispositive Power 427,747 ----------------------------------------------------- 10. Shared Dispositive Power 848,220 (1) - ----------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 1,275,967 (1) - ------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) |_| - ------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 26.0% (1)(2) - ------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - ------------------------------------------------------------------------------- - ---------- (1) Dr. Kissinger shares voting and dispositive power over these shares with his spouse. Includes 1,354 shares indirectly held by Ms. Kissinger as custodian for the benefit of their children. (2) Based on 4,915,318 of the Company's Common Shares which were outstanding as of January 30, 2009. CUSIP No. 09058M 10 3 - ------------------------------------------------------------------------------- 1. Name of Reporting Person. Candice B. Kissinger - ------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) |X| (b) |_| - ------------------------------------------------------------------------------- 3. SEC Use Only - ------------------------------------------------------------------------------- 4. Source of Funds (See Instructions): PF (see Item 3) - ------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) |_| - ------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: United States - ------------------------------------------------------------------------------- Number of 7. Sole Voting Power 252,310 (1) Shares ----------------------------------------------------- Beneficially Owned by Each 8. Shared Voting Power 1,023,657 (2) Reporting ----------------------------------------------------- Person With 9. Sole Dispositive Power 252,310 (1) ----------------------------------------------------- 10. Shared Dispositive Power 1,023,657 (2) - ----------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 1,275,967 (1)(2) - ------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) |_| - ------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 26.0% (1)(2)(3) - ------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - ------------------------------------------------------------------------------- - ---------- (1) Includes 1,354 shares indirectly held by Ms. Kissinger as custodian for the benefit of their children. (2) Ms. Kissinger shares voting and dispositive power over these shares with her spouse. (3) Based on 4,915,318 of the Company's Common Shares which were outstanding as of January 30, 2009. Explanatory Note The Issuer's Common Shares to which this statement on Schedule 13D (this "Schedule 13D") relates were previously reported by Peter T. Kissinger, Ph.D. on a Schedule 13G filed with the Securities and Exchange Commission on February 16, 1999 and by Candice B. Kissinger on a Schedule 13G filed with the Securities and Exchange Commission on February 16, 1999. Item 1. Security and Issuer This Schedule 13D relates to Common Shares (the "Common Shares") of Bioanalytical Systems, Inc. (the "Issuer"). The Issuer's principal executive offices are located at 2701 Kent Avenue, West Lafayette, Indiana 47906, United States. Item 2. Identity and Background (a) This Schedule 13D is filed by Peter T. Kissinger, Ph.D. and Candice B. Kissinger (collectively, the "Kissingers"). (b) The business address for each of the Kissingers is: 111 Lorene Place, West Lafayette, Indiana 47906-8620. (c) Peter T. Kissinger, Ph.D. is currently a Professor of Chemistry in the Department of Chemistry at Purdue University in West Lafayette, IN 47907. Candice B. Kissinger is the Legacy Products Coordinator at Purdue GMP Center LLC, a facility devoted to meeting the educational, research and training goals of Purdue's School of Pharmacy and its Department of Industrial and Physical Pharmacy, located at 3070 Kent Avenue, Purdue Research Park, West Lafayette, IN 47906-1075. (d) and (e) During the last five years, neither of the Kissingers has (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violations with respect to such laws. (f) Each of the Kissingers is a citizen of the United States. Item 3. Source and Amount of Funds or Other Consideration Dr. Kissinger founded the Issuer in 1974 and served as its Chairman, President and Chief Executive Officer through September 2006 and its Chairman until September 2007. Ms. Kissinger also served as an executive officer and director of the Issuer through September 2007. Ms. Kissinger joined the Issuer in 1978. The Kissingers acquired their Common Shares using personal funds including, but not limited to, by exercising stock options received in connection with their positions with the Issuer. Item 4. Purpose of Transaction On April 6, 2009, the Kissingers provided a letter dated April 6, 2009 (the "Letter") to the Issuer's Board of Directors regarding the business, operations, financial results and management of the Issuer. A copy of the Letter is filed herewith and attached hereto as Exhibit 99.1 and incorporated herein by reference. Any descriptions herein of the Letter are qualified in their entirety by reference to the Letter. Other than as set forth in the Letter and in this Item 4, the Kissingers do not have any current plans, proposals or negotiations that relate to or would result in any of the matters referred to in paragraphs (a) through (j) of Item 4 of the Schedule 13D. The Kissingers intend to review their investment in the Issuer on a continuing basis, and to the extent permitted by law, seek to engage in discussions with other shareholders and/or with management and the Board of Directors of the Issuer concerning the business, operations, management or future plans of the Issuer. Depending on various factors including, without limitation, the Issuer's financial position, the price levels of the Common Shares, conditions in the securities markets and general economic and industry conditions, the Kissingers may in the future take such actions with respect to their investment in the Issuer as they deem appropriate including, without limitation, purchasing additional Common Shares, selling Common Shares, taking any other action with respect to the Issuer or any of its securities in any manner permitted by law or changing their intention with respect to any and all matters referred to in paragraphs (a) through (j) of Item 4. Item 5. Interest in Securities of the Issuer (a) and (b) The information contained on the cover pages to this Schedule 13D is incorporated herein by reference. (c) The reported amount of Common Shares beneficially owned by the Kissingers is as of April 6, 2009. Neither of the Kissingers effected any transaction relating to the Common Shares during the past 60 days. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Each of the Kissingers is a party to a Joint Filing Agreement, dated as of April 6, 2009 (the "Agreement"), pursuant to which they agreed to jointly file this Schedule 13D and any and all amendments and supplements hereto with the Securities and Exchange Commission. The description of the Agreement in this Item 6 of the Schedule 13D is qualified in its entirety by reference to the full text of the Agreement, a copy of which is filed herewith as Exhibit 99.2. Item 7. Material to Be Filed as Exhibits The following exhibits are being filed with this Schedule 13D: Exhibit 99.1 - Letter from Peter T. Kissinger, Ph.D. and Candice B. Kissinger to the Board of Directors of Bioanalytical Systems, Inc., dated April 6, 2009 Exhibit 99.2 - Joint Filing Agreement, dated as of April 6, 2009 - ------------------------------------------------------------------------------- SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: April 6, 2009 By: /s/ Peter T. Kissinger, Ph.D. --------------------------------------- Peter T. Kissinger, Ph.D. By: /s/ Candice B. Kissinger --------------------------------------- Candice B. Kissinger EX-99 2 kissinger_ex1.txt EXHIBIT 99.1 Exhibit 99.1 Letter from Peter T. Kissinger, Ph.D. and Candice B. Kissinger to the Board of Directors of Bioanalytical Systems, Inc. PETER T. KISSINGER, PH.D. AND CANDICE B. KISSINGER 111 Lorene Place West Lafayette, Indiana 47906-8620 April 6, 2009 Board of Directors of Bioanalytical Systems, Inc. c/o Corporate Secretary, Bioanalytical Systems, Inc. 2701 Kent Avenue West Lafayette, IN 47906 Dear Sirs: As you know, we collectively own 26% of the common stock of Bioanalytical Systems, Inc. (the "Company"), and are the Company's largest shareholders. As the founder of the Company and members of the Company's executive management team until 2007, we have both a personal and a significant financial stake in the success of the Company. Since our departure from the active management of the Company, we have grown increasingly concerned regarding the operations, financial condition and management of the Company. Financial Results. For each of the quarters in fiscal 2008 and continuing in the first quarter of fiscal 2009, the Company has reported net losses, which continue to increase quarter-over-quarter, including a net loss of $1.6 million in the first quarter of fiscal 2009. For fiscal 2008, while revenues increased 4.9% from fiscal 2007, expenses increased at a faster rate, including a 40.6% increase year-over-year in selling expenses and a 14.1% increase year-over-year in general and administrative expenses. In the first quarter of 2009, this trend worsened, as revenues decreased 23.6%, while selling expenses increased 26.9% and general and administrative expenses increased 31.4% compared to the first quarter of fiscal 2008. In contrast, research and development has long been essential to the success of the Company. During fiscal 2008, expenses for research and development actually decreased by 11.4% year-over-year and in the first quarter of fiscal 2009, the amount spent on research and development was only 6% of total operating expenses for the quarter. While the current economic crisis has negatively impacted the Company and its industry as a whole, we do not believe that this is the sole reason for the increased net losses recognized by the Company in the most recent fiscal quarters. Stock Price. Since the end of fiscal 2008, the price of the Company's common stock has declined significantly. On September 30, 2008, the Company's closing stock price on the NASDAQ Global Market was $4.60. Comparatively, on April 2, 2009, the Company's closing stock price was $1.25. As stated above, we do not believe that the current economic situation is the sole reason for this decline in the Company's stock price. Rather, we believe that investor confidence has declined, which has impacted the Company's stock price. Departure of Key Employees. Over the past several months, several key members of management and other key employees have left the Company. As stated in the Annual Report on Form 10-K for fiscal 2008, "In particular, since September 30, 2008, we experienced substantial turnover in our marketing and business development teams. Specifically, our Senior Vice President and Chief Business Officer, our Vice President of Business Development and several of our leading sales team are no longer with the Company." Emilio Cordova, the former Vice President of Business Development, had worked for the Company for 12 years. Ronald Shoup, the former Chief Scientific Officer, retired from the Company in September 2008 after nearly 30 years of service with the Company. In addition, several other key sales people and scientists have left the Company in the last few months. These individuals built strong relationships with many of the Company's customers, and we believe that their departures have negatively affected the Company's relationships with these customers. Executive Compensation Arrangements. As described in the Company's proxy statement for the annual meeting held on March 19, 2009, Messrs. Shepperd, Cox, Brewer and Chilton have entered into employment agreements with the Company. Each of these employment agreements contain "golden parachute" provisions in the event of a change in control that we believe go beyond that which would be necessary to retain these individuals if a change in control occurred. In particular, Mr. Shepperd's agreement originally provided for a payment upon a change in control, but only if he was involuntarily terminated within one year following the change in control. In January 2009, the Company entered into an amendment to his employment agreement, and now Mr. Shepperd will receive a payment of $201,600 merely upon the occurrence of a change in control. We also are concerned with bonus payments that were awarded to Mr. Cox in 2007 and 2008. Despite the Company's operating results and material weaknesses identified by the independent auditors, Mr. Cox received bonus payments totaling $65,000 in 2007 and 2008. We are not certain how these bonuses fit with the current focus of shareholders generally on pay-for-performance at public companies. Limited Shareholder Stake by Management. As previously stated, collectively we own 26% of the Company's common stock. Per the proxy statement filed in connection with the Company's annual meeting held on March 19, 2009, the Board of Directors, in the aggregate, only owns 4.1% of the Company's common stock, 3.0% of which is owned by one director. Mr. Shepperd, President and Chief Executive Officer of the Company and also a member of the Board, only owns 0.3% of the Company's common stock, and Mr. Cox, Chief Financial Officer of the Company, is listed as having no ownership interest in the Company. As a result, the interests of management and the Board may not be aligned with those of the Company's shareholders. Dissatisfaction of Shareholders. We are clearly not the only shareholders that are concerned about the current state of the Company. On April 1, 2009, Thomas Harenburg, beneficial owner of 5.6% of the outstanding shares of the Company's common stock, filed a Schedule 13D with the Securities and Exchange Commission, requesting that his director nominee replace one of the current Board members prior to the next regularly scheduled Board meeting. Prior to that, at the annual meeting of shareholders held on March 19, 2009, over 95% of the Company's outstanding shares were voted in person or by proxy. At that meeting, each of the five director nominees received over 50% withheld votes, with the average withheld vote being 57%. No director received more than 50% of the votes "for" his election. Market data shows that it is unusual for an individual director of a public company to receive such a high percentage of votes against his or her re-election, let alone the entire slate of directors. In fact, many public companies have a majority voting standard for directors, unlike our plurality voting standard, which means that if a director does not receive a majority of votes "for" his election (which was the case for each of the Company's directors), he would be required to resign from the Board. As significant shareholders in the Company, and coupled with the Company's recent operating results and evident lack of shareholder confidence in the current directors demonstrated by the votes at the last shareholders' meeting: 1. We request that the Independent Directors of the Board meet with us to discuss the current financial condition and management of the Company, including the executive compensation arrangements currently in place, Mr. Shepperd's qualifications and knowledge regarding the Company's industry, and the feasibility of the Company going private or pursuing other strategic alternatives. 2. As stated in the Company's proxy statement for its annual meeting of shareholders held on March 20, 2008, "Dr. Kissinger has been named Chairman Emeritus of the Board of Directors, a non-voting, uncompensated position that provides for his continued input into matters coming before the Board." Since being appointed Chairman Emeritus, Dr. Kissinger has not been included in matters coming before the Board and has not received Board materials or minutes from the meetings held. We therefore request that, commencing with the next meeting of the Board, the Board honor Dr. Kissinger's position as Chairman Emeritus by permitting him to attend all Board meetings and by providing him with all materials provided to Board members in connection with regularly scheduled Board meetings or otherwise. 3. Effective immediately, we request that the Company not enter into any new agreements with severance or change in control arrangements. In addition, we request that the Company not renew the term of any employment agreements or permit the automatic renewal or extension of any employment agreements with any of the Company's officers. 4. We request that the Board promptly agree to replace three of the current members of the Board with three directors of our choosing. If the Board fails to honor these requests, we reserve the right to take any and all further action. We believe that there is significant value in the Company and we look forward to your cooperation in helping to restore it. Sincerely, /s/ Peter T. Kissinger, Ph.D. /s/ Candice B. Kissinger Peter T. Kissinger, Ph.D. Candice B. Kissinger EX-99 3 kissinger_ex2.txt EXHIBIT 99.2 Exhibit 99.2 JOINT FILING AGREEMENT THIS JOINT FILING AGREEMENT (this "Agreement") is made and entered into as of this 6th day of April, 2009, by and between Peter T. Kissinger, Ph.D. and Candice B. Kissinger. The parties to this Agreement hereby agree to prepare jointly and file timely (or otherwise to deliver as appropriate) all filings on Schedule 13D (the "Filings") required to be filed by them pursuant to Section 13(d) under the Securities Exchange Act of 1934, as amended, with respect to their respective ownership of the Common Shares of Bioanalytical Systems, Inc. that are required to be reported on any Filings. Each party to this Agreement further agrees and covenants to the other party that it will fully cooperate with such other party in the preparation and timely filing (and other delivery) of all such Filings. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. By: /s/ Peter T. Kissinger, Ph.D. --------------------------------------- Peter T. Kissinger, Ph.D. By: /s/ Candice B. Kissinger --------------------------------------- Candice B. Kissinger -----END PRIVACY-ENHANCED MESSAGE-----