exv10w1






Exhibit 10.1




EMPLOYMENT AGREEMENT




     THIS EMPLOYMENT AGREEMENT (the “Agreement”), made as of this 19th day of September, 2008, is
entered into by Bio-Imaging Technologies, Inc., a Delaware corporation with its principal place of
business at 826 Newtown-Yardley Road, Newtown, Pennsylvania 18940 (the “Company”), and Peter Benton
(the “Employee”).



     The Company desires to employ the Employee, and the Employee desires to be employed by the
Company within the Company’s wholly-owned subsidiary, Phoenix Data Systems, Inc., a Delaware
corporation with its principal place of business at 901 East 8th Avenue, Suite 201, King of
Prussia, PA 19406 (“PDS”). In consideration of the mutual covenants and promises contained in this
Agreement, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties to this Agreement, the parties agree as follows:


1. Term of Employment. The Company hereby agrees to employ the Employee, and the Employee
hereby accepts employment with the Company within PDS, upon the terms set forth in this Agreement,
for the period commencing on September 30, 2008 (the “Commencement Date”) and ending on September
30, 2009 (such period, as it may be extended, the “Employment Period”), unless sooner terminated in
accordance with the provisions of Section 4; provided, however, that the Employment Period shall
automatically renew for successive twelve (12) month terms unless either party provides the notice
of termination pursuant to Section 4.5 below.




2. Title; Capacity.




     2.1 Title. The Employee shall serve as President of PDS, or in such other reasonably
comparable position as the Chief Executive Officer (the “CEO”) of the Company or its Board of
Directors (the “Board”) may determine from time to time. The Employee shall be based at PDS’s
headquarters in King of Prussia, Pennsylvania, or such place or places in the continental United
States as the Board shall reasonably determine. The Employee shall be subject to the supervision
of, and shall have such authority as is delegated to the Employee by, the Board, President or CEO
of the Company.



     2.2 Capacity. The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such position and such other duties and responsibilities as
the CEO or the Board or its designees shall from time to time reasonably assign to the Employee.
The Employee agrees to devote his entire business time, attention and energies to the business and
interests of the Company and PDS during the Employment Period; provided that the Employee may serve
as a nonexecutive director or trustee of other companies or entities, so long as such service does
not unreasonably interfere with the Employee’s duties hereunder. The Employee agrees to abide by
the rules, regulations, instructions, personnel practices and policies of the Company and PDS and
any changes therein that may be adopted from time to time by the Company and PDS. The Employee
further agrees to abide by the applicable rules,



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practices, policies, restrictions and principles outlined by the Board in its Corporate Policy
Governance Manual and amendments adopted thereto.




3. Compensation and Benefits.




     3.1 Salary. The Company shall pay the Employee, in periodic installments in accordance
with the Company’s customary payroll practices, an annual base salary of $260,000 for the one (1)
year period commencing on the Commencement Date. Such salary may be subject to adjustment for cost
of living or other adjustments thereafter determined by the Chief Executive Officer of the Company.



     3.2 Fringe Benefits. The Employee shall be entitled to participate in all bonus and
benefit programs that the Company establishes and makes available to its senior executives, if any,
to the extent that Employee’s position, tenure, salary, age, health and other qualifications make
him eligible to participate. The Employee shall be entitled to Paid Time Off per the Company’s Paid
Time Off Policy as set forth in the Company’s Human Resources Policies, Practices & Procedures
Manual, to be taken at such times as may be approved by the Chief Executive Officer of the Company.



     3.3 Reimbursement of Expenses. The Company shall reimburse the Employee for all
reasonable travel, entertainment and other expenses incurred or paid by the Employee in connection
with, or related to, the performance of his duties, responsibilities or services under this
Agreement, in accordance with policies and procedures, and subject to the limitations adopted by
the Company or the Board from time to time. In no event will such expense be reimbursed after the
close of the calendar year following the calendar year in which that expense is incurred. The
amount of reimbursements to which the Employee may become entitled in any one calendar year shall
not affect the amount of expenses eligible for reimbursement hereunder in any other calendar year.
The Employee’s right to reimbursement cannot be liquidated or exchanged for any other benefit or
payment.



     3.4 Bonuses; Incentive Compensation. Beginning in fiscal year 2008, the Employee shall
be eligible to receive an annual bonus (the “MIP Bonus”) up to an amount equal to forty percent
(40%) of the Employee’s annual base salary upon the achievement of certain milestones as set forth
in an annual Management Incentive Plan. Additional milestones may be established to increase the
MIP bonus to a maximum amount equal to eighty percent (80%) of the Employee’s annual base salary.
The specific annual milestones will be set each year by the Compensation Committee of the Board
(the “Compensation Committee”). MIP Bonus payments are subject to approval by the Compensation
Committee and shall be pro-rated in the year of hire. The Employee must be an active, full-time
employee on the date payment is made to be eligible. Any MIP Bonus awarded to the Employee shall
be paid by the 15th day of the third month following the close of the calendar year for which such
bonus is earned or as soon as administratively practicable thereafter, but in no event shall such
payment be made prior to the first business day in January in the calendar year immediately
following the calendar year for which that bonus is earned or after April 30 of that calendar year.



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     3.5 Stock Options. The Employee may be entitled to a grant of an option, subject to
approval of the Compensation Committee, to purchase up to 100,000 shares of common stock of the
Company, $0.00025 par value per share (“Common Stock”), at a purchase price equal to one hundred
percent (100%) of the fair market value of the Common Stock on the date of the grant (which date
shall be the date of Compensation Committee Approval), which options will vest over four (4) years
as follows: twenty-five percent (25%) shall vest on the first anniversary of the date of grant and
then twenty-five percent (25%) annually on each anniversary of the date of grant thereafter until
fully vested.



     3.6 Relocation Assistance. The Company will provide relocation assistance with the
understanding that the Employee will be moving within close proximity to Company or PDS offices
within a reasonable period of time. The Employee will receive reimbursement for relocation
expenses up to a maximum of $50,000, which amounts will be paid to the Employee upon submission of
receipts for approved relocation expenses and will be subject to applicable income taxes where
required by law. Approved relocation expenses include: moving household goods, house hunting
trips, home sales services and home buying services. The Employee must be an active, full-time
employee on the date payment is made to be eligible for such relocation assistance.



     3.7 Witholding. All salary, bonus and other compensation payable to the Employee
shall be subject to applicable withholding taxes.


4. Termination of Employment Period. The employment of the Employee by the Company pursuant
to this Agreement shall terminate upon the occurrence of any of the following:




     4.1 Expiration of the Employment Period;



     4.2 At the election of the Company, for Cause (as defined below), immediately upon written
notice by the Company to the Employee, which notice shall identify the Cause upon which the
termination is based. For the purposes of this Section 4.2, “Cause” shall mean that (i) the
Employee has repeatedly failed to perform his assigned duties for the Company after ten (10) days
written notice and an opportunity to cure, (ii) the Employee has engaged in dishonesty, gross
negligence or misconduct materially detrimental to the Company’s interest or (iii) the conviction
of the Employee of, or the entry of a pleading of guilty or nolo contendere by the Employee to any
crime involving moral turpitude or any felony;



     4.3 At the election of the Employee, for Good Reason (as defined below), immediately upon
written notice by the Employee to the Company, which notice shall identify the Good Reason upon
which the termination is based and provide thirty (30) days from receipt of notice for Company to
cure such Good Reason. For the purposes of this Section 4.3, “Good Reason” for termination shall
mean (i) a material adverse change in the Employee’s authority, duties or compensation without the
prior written consent of the Employee, (ii) a material breach by the Company of the terms of this
Agreement,



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which breach is not remedied by the Company within ten (10) days following receipt of written
notice from the Employee to the Company notifying it of such breach, or (iii) the relocation of the
Employee’s place of work to a new location that is outside a radius of fifty (50) miles from the
Employee’s principal residence and outside a radius of twenty-five (25) miles from the
location at which the Employee performed his principal duties for the Company and PDS immediately
prior to the date of such change;




     4.4 Upon the death or disability of the Employee. As used in this Agreement, the term
“disability” shall mean the inability of the Employee, due to a physical or mental disability, for
a period of ninety (90) days, whether or not consecutive, during any three hundred sixty (360)-day
period, to perform the services contemplated under this Agreement, with or without reasonable
accommodation as that term is defined under state or federal law. A determination of disability
shall be made by a physician satisfactory to both the Employee and the Company; provided that, if
the Employee and the Company do not agree on a physician, the Employee and the Company shall each
select a physician and these two together shall select a third physician, whose determination as to
disability shall be binding on all parties; or



     4.5 At the election of either party, upon not less than one hundred eighty (180) days’ prior
written notice of termination (the “Termination Notice Period”); provided, however, that if the
Company pays the Severance Amount pursuant to Section 5.1(b) below, then the Termination Notice
Period shall automatically end on the date the Severance Period (as defined below) begins.



5. Effect of Termination.




     5.1 Payments Upon Termination.



     (a) In the event the Employee’s employment is terminated pursuant to Section 4.1, Section 4.2
or Section 4.4, or by the Employee pursuant to Section 4.5, the Company shall pay to the Employee
the compensation and benefits otherwise payable to him under Section 3 through the last day of his
actual employment by the Company.



     (b) In the event the Employee’s employment is terminated by the Employee pursuant to Section
4.3, or by the Company pursuant to Section 4.5, the following provisions shall apply:



          (i) the Company shall continue to pay to the Employee his salary as in effect on the date of
termination and continue to provide to the Employee the other benefits owed to him under Section
3.2 (to the extent such benefits can be provided to non-employees, or to the extent such benefits
cannot be provided to non-employees, then the cash equivalent thereof) until the date one hundred
eighty (180) days (the “Severance Period”) after the date of termination (the “Severance Amount”).
Such Severance Amount shall be paid over the Severance Period in accordance with the Company’s
normal payment practices for salaried employees, beginning with the first pay date within the
60-day period following the Employee’s separation from service due to such



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termination on which the requisite Release (as defined below) is effective following the expiration
of any applicable revocation period, but in no event will the first such payment be made later than
the last day of such 60-day period. Such Severance Period shall immediately terminate (and
payments made pursuant to this Section 5.1(b) shall cease) if the Employee fails to be reasonably
cooperative, responsive or available for reasonable requests by the Company to the Employee to
assist the Company pertaining to areas of the Company’s business of which the Employee is familiar
as a result of his employment;




          (ii) the Company shall pay to the Employee any pro-rated amounts due under Section 3.4, as
determined by the Compensation Committee or the Chief Executive Officer of the Company, such
payments to begin within the 60-day period following the Employee’s “separation from service” with
the Company (as determined in accordance with the provisions of Code Section 409A and the final
Treasury Regulations thereunder) due to such termination on which the requisite Release is
effective following the expiration of any applicable revocation period; and




          (iii) the Employee’s options shall continue to vest during the Severance Period as proscribed
under Section 3.5.




          (iv) Should the Employee elect under Code Section 4980B to continue health care coverage under
the Company’s group health plan for himself, his spouse and his eligible dependents following such
termination date, then the Company shall provide such continued health care coverage at the
Company’s expense until the earlier of (i) the expiration of the 180-day period measured
from the date of such termination date or (ii) the first date the Employee is covered under another
employer’s heath benefit program which provides substantially the same level of benefits without
exclusion for pre-existing medical conditions. Should the Company’s provision of such continued
health care coverage result in the recognition of taxable income (whether for federal, state or
local income tax purposes) by the Employee or his spouse or other eligible dependent, then the
Employee and his spouse and dependents shall each be responsible for the payment of the income and
employment tax liability resulting from such coverage, and the Company will not provide any tax
gross-up payments to the Employee (or any other person) with respect to such income and employment
tax liability.




          (v) The Company shall make a lump sum cash payment, not to exceed $5,000, to cover the cost of
any other benefits to which the Employee would have been entitled under Section 3.2 of this
Agreement had he continued in employment for an additional one hundred eighty (180) days following
such termination date. Such payment shall be made to the Employee within the 60-day period
following the Employee’s separation from service on which the requisite Release is effective
following any applicable revocation period.




          (vi) The payment to the Employee of the amounts payable under this Section 5.1(b) shall
constitute the sole remedy of the Employee in the event of a termination of the Employee’s
employment under the circumstances set forth in this Section 5.1(b). The Employee shall not be
entitled to any payments under this Section 5.1(b) unless and until the Employee executes a mutual
general release and waiver (a “Release”) in a form reasonably satisfactory to the CEO of the
Company or the Board.




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     5.2 Section 409A. Certain payments contemplated by this Restated Agreement may be
“deferred compensation” for purposes of Section 409A of the Code. Accordingly, the following
provisions shall be in effect for purposes of avoiding or mitigating any adverse tax consequences
to the Employee under Code Section 409A.



          (a) It is the intent of the parties that the provisions of this Agreement comply with all
applicable requirements of Code Section 409A. Accordingly, all provisions of this Agreement shall
be interpreted and applied in a manner that does not result in a violation of the applicable
requirements or limitations of Code Section 409A and the applicable Treasury Regulations thereunder
and such provisions shall be amended to comply with Code Section 409A and the applicable Treasury
Regulations thereunder.




          (b) Notwithstanding any provision to the contrary in this Agreement, no payments or benefits
to which the Employee may become entitled under Section 5.1(b) shall be made or provided to him
prior to the earlier of (i) the expiration of the six (6)-month period measured from the date of
his separation from service with the Company (as determined in accordance with the provisions of
Code Section 409A and the final Treasury Regulations thereunder), or (ii) the date of his death,
provided that the Employee is deemed, at the time of such separation from service, to be a “key
employee” within the meaning of that term under Code Section 416(i) and is deemed, pursuant to the
procedures established by the Compensation Committee (in accordance with the applicable standards
of Code Section 409A and the Treasury Regulations thereunder) and applied on a consistent basis for
all non-qualified deferred compensation plans of the “employer group” (as determined in accordance
with the provisions of Code Sections 414(b) and (c) and the final Treasury Regulations thereunder)
subject to Code Section 409A, to be a “specified employee” at the time of such separation from
service and such delayed commencement is otherwise required in order to avoid a prohibited
distribution under Code Section 409A(a)(2). Upon the expiration of the applicable Code Section
409A(a)(2) deferral period, all payments and benefits deferred pursuant to this Section 5.2(b)
(whether they would have otherwise been payable in a single sum or in installments in the absence
of such deferral) shall be paid or reimbursed to the Employee in a lump sum, and any remaining
payments and benefits due under this Agreement shall be paid or provided in accordance with the
normal payment dates specified for them herein. The specified employees subject to such a delayed
commencement date shall be identified on December 31 of each calendar year. If the Employee is so
identified on any such December 31, he shall have specified employee status for the twelve
(12)-month period beginning on April 1 of the following calendar year.




     5.3 Survival. The provisions of Sections 5.1(b), 5.2, 5.3, 6, 7.2, 8.3, 8.5 and 8.9
shall survive the termination of this Agreement.


6. Non-Competition and Non-Solicitation. The Employee shall execute, if not previously
executed and still in effect, simultaneously with the execution of this Agreement, or otherwise
upon the request of the Company, the Company’s customary form of Non-Competition and
Non-Solicitation Agreement and form of Invention Assignment and Confidential Information Agreement,
substantially in the forms attached hereto as Exhibit A and Exhibit B,
respectively.




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7. Other Agreements.




     7.1 Prior Agreements. The Employee represents that his performance of all the terms
of this Agreement and the performance of his duties as an employee of the Company do not and will
not breach any agreement with any prior employer or other party to which the Employee is a party
(including without limitation any nondisclosure or non-competition agreement). Any agreement to
which the Employee is a party relating to nondisclosure, non-competition or non-solicitation of
employees or customers is listed on Schedule A attached hereto.



     7.2 Executive Retention Agreement. Upon execution of this Agreement, the Company and
the Employee shall enter into the Executive Retention Agreement attached hereto as Exhibit
C; provided, however, that if the Employee is terminated for any reason, and such termination
triggers a payment (including benefits) to the Employee pursuant to the Executive Retention
Agreement, then the Employee shall receive payments (including benefits) solely pursuant to the
Executive Retention Agreement and not pursuant to this Agreement.



8. Miscellaneous.




     8.1 Notices. Any notice delivered under this Agreement shall be deemed duly delivered
four (4) business days after it is sent by registered or certified mail, return receipt requested,
postage prepaid, or one (1) business day after it is sent for next-business day delivery via a
reputable nationwide overnight courier service, in each case to the address of the recipient set
forth on the signature page hereto. Either party may change the address to which notices are to be
delivered by giving notice of such change to the other party in the manner set forth in this
Section 8.1.



     8.2 Pronouns. Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the singular forms of
nouns and pronouns shall include the plural, and vice versa.



     8.3 Entire Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements and understandings, whether written or oral, relating
to the subject matter of this Agreement.



     8.4 Amendment. This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Employee.



     8.5 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania (without reference to the conflicts of laws
provisions thereof). Any action, suit or other legal proceeding arising under or relating to any
provision of this Agreement shall be commenced only in a court of the Commonwealth of Pennsylvania
(or, if appropriate, a federal court located within the Commonwealth of Pennsylvania), and the
Company and the Employee each



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consents to the jurisdiction of such a court. The Company and the Employee each hereby irrevocably
waive any right to a trial by jury in any action, suit or other legal proceeding arising under or
relating to any provision of this Agreement.




     8.6 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of both parties and their respective successors and assigns, including any corporation with
which, or into which, the Company may be merged or which may succeed to the Company’s assets or
business; provided, however, that the obligations of the Employee are personal and shall not be
assigned by him. Notwithstanding the foregoing, if the Company is merged with or into a third party
which is engaged in multiple lines of business, or if a third party engaged in multiple lines of
business succeeds to the Company’s assets or business, then for purposes of this Agreement, the
term “Company” shall mean and refer to the business of the Company as it existed immediately prior
to such event and as it subsequently develops and not to the third party’s other businesses.



     8.7 Waivers. No delay or omission by the Company in exercising any right under this
Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the
Company on any one occasion shall be effective only in that instance and shall not be construed as
a bar or waiver of any right on any other occasion.



     8.8 Captions. The captions of the sections of this Agreement are for convenience of
reference only and in no way define, limit or affect the scope or substance of any section of this
Agreement.



     8.9 Severability. In case any provision of this Agreement shall be invalid, illegal or
otherwise unenforceable, the validity, legality and enforceability of the remaining provisions
shall in no way be affected or impaired thereby.



[Signature Page Follows]




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THE EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS
AGREEMENT, HAS HAD A FULL OPPORTUNITY TO REVIEW THIS AGREEMENT AND HAS CONSULTED WITH COUNSEL AND
UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set
forth above.



BIO-IMAGING TECHNOLOGIES, INC.




	 	 	 	 	 
	By:

	 	/s/ Mark L. Weinstein	 	 
	Name:

	 	 

Mark L. Weinstein
	 	 
	Title:

	 	President & CEO	 	 
	Address:

	 	826 Newtown-Yardley Road	 	 
	 

	 	Newtown, Pennsylvania 18940	 	 






EMPLOYEE




	 	 	 
	/s/ Peter Benton 9/19/2008
	 	 
	 

Peter Benton

	 	 
	2 Hillard Lane
	 	 
	Gladstone, NJ 07934
	 	 







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Exhibit A




BIO-IMAGING TECHNOLOGIES, INC.

EMPLOYEE

NON-COMPETITION AND NON-SOLICITATION

AGREEMENT




     In consideration of my employment or continued employment by Bio-Imaging Technologies, Inc., a
Delaware corporation (the “Company”), within the Company’s wholly-owned subsidiary Phoenix Data
Systems, Inc. (“PDS”), a Delaware corporation, I hereby represent and agree as follows:


1. I understand that the Company and its subsidiaries are engaged in a continuous program of
research, development, production and marketing in connection with its business and that I have
been hired to invent and create, or may acquire information with respect to scientific, technical
and/or business innovations. References herein to the Company shall include PDS.




2. Covenant Not to Compete: Non-Solicitation.




     (a) Non-Competition. During the period of my employment with the Company and for a
period of one (1) year thereafter, I will not, either for myself or any other person or entity,
directly or indirectly carry on or engage in any business competitive with that of the Company as
of the date of the termination of my employment by the Company in any state or commonwealth of the
United States or any country of the world in which the Company or any affiliate of the Company
carries on or engages in the business of the Company. The business of the Company for these
purposes shall include, without limitation, such specific technologies or products in which the
Company shall, during the period of my employment, have initiated significant plans to develop.
Carrying on or engaging in business on my part shall include the following activities: engaging in,
working with, having an interest or concern in, advising, lending money to, guaranteeing the debts
or obligations of, or permitting one’s name to be used in connection with, an enterprise or
endeavor, either individually, in partnership or in conjunction with any person or persons, firms,
associations, companies or corporations, whether as a principal, agent, shareholder, employee,
officer, director, partner, consultant or in any manner whatsoever (it is being understood that I
will retain the right to invest in or have an interest in entities traded on any public market or
offered by any national brokerage house, provided that such interest does not exceed five percent
(5%) of the voting control of that entity).



     (b) Non-Solicitation. During the period of my employment with the Company and for a
period of one (1) year thereafter, I will not, either for myself or for any other person or entity,
directly or indirectly (i) solicit, induce or attempt to induce any employee of the Company or of
any affiliate of the Company to terminate his or her employment with the



 









 




Company or such affiliate or (ii) solicit or contact any customer or potential customer of the
Company or any affiliate of the Company.



3. Other Agreements. I represent that my performance of all the terms of this Agreement and
my duties as an employee of the Company will not breach any invention assignment agreement,
confidential information agreement, non-competition agreement or other agreement with any former
employer or other party. I represent that I
will not bring with me to the Company, or use in the performance of my duties for the Company, any
documents or materials of a former employer that are not generally available to the public.



4. Disclosure of this Agreement. I hereby authorize the Company to notify others,
including, but not limited to, customers of the Company and any of my future employers, of the
terms of this Agreement and my responsibilities hereunder.



5. Injunctive Relief and Enforcement. I understand that in the event of a breach or
threatened breach of this Agreement by me the Company may suffer irreparable harm and will
therefore be entitled to injunctive relief to enforce this Agreement. I also agree that if any
court shall determine that any provision of this Agreement is unenforceable with respect to its
term or scope then such provision shall nonetheless be enforceable by any such court upon such
modified term or scope as may be determined by such court to be reasonable and enforceable.



6. Governing Law. I agree that this Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.




	 	 	 	 	 
	 	 	 
	Date 9/25/2008 	/s/ Peter Benton
 	 
	 	Signature	 
	 	Peter Benton

2 Hillard Lane

Gladstone, NJ  07934 	 
	 




 









 





Exhibit B




BIO-IMAGING TECHNOLOGIES, INC.

EMPLOYEE

INVENTION ASSIGNMENT AND CONFIDENTIAL

INFORMATION AGREEMENT




     In consideration of my employment or continued employment by Bio-Imaging Technologies, Inc., a
Delaware corporation (the “Company”), within the Company’s wholly-owned subsidiary Phoenix Data
Systems, Inc. (“PDS”), a Delaware corporation, I hereby represent and agree as follows:


1. I understand that the Company and its subsidiaries are engaged in a continuous program of
research, development, production and marketing in connection with its business and that I have
been hired to invent and create, or may acquire information with respect to, scientific, technical
and/or business innovations. References herein to the Company shall include PDS.



2. Disclosure of Innovations. I agree to disclose in writing to the Company, all
inventions, improvements and other innovations relating to the technology of the Company on which I
worked during Company time or with Company assets that I may make, conceive, develop or reduce to
practice, alone or jointly with others, during the term of my employment with the Company, whether
or not they are related to my work for the Company and whether or not they are eligible for patent,
copyright, trademark, trade secret or other legal protection (“Innovations”).



3. Assignment of Ownership of Innovations. I agree that all Innovations will be the sole
and exclusive property of the Company, and I hereby assign all my rights, or that the Company shall
have no less than “shop rights” in the event of a limitation, in the Innovations and in all related
patents, copyrights, trademarks, trade secrets, rights of priority and other proprietary rights to
the Company. At the Company’s request and expense, during and after the period of my employment
with the Company, and subsequent to my employment at the request of the Company, I will assist and
cooperate with the Company in all respects and will execute documents, and, subject to my
reasonable availability, give testimony and take further acts requested by the Company to obtain,
maintain and enforce the protection of the Innovations. I hereby appoint the President of the
Company as my attorney-in-fact to execute documents on my behalf for this purpose.



4. Protection of Confidential Information of the Company. I understand that my work as an
employee of the Company creates a relationship of trust and confidence between myself and the
Company. During and after the period of my employment with the Company, I will not use or disclose,
or allow anyone else to use or disclose, any “Confidential Information” (as defined below) relating
to the Company, its products, suppliers or customers, except as may be necessary in the performance
of my work for the Company or as may be authorized in advance by appropriate officers of the
Company. “Confidential Information” shall include innovations, business strategies, financial
information, forecasts, personnel information, customer lists, trade


 









 






secrets and any other non-public technical or business information, whether in writing or given to
me orally, which I know or have reason to know the Company would like to treat as confidential for
any purpose, such as maintaining a competitive advantage or avoiding undesirable publicity. I will
keep Confidential Information secret and will not allow any unauthorized use of the same, whether
or not any document containing it is marked as confidential. These restrictions, however, will not
apply to Confidential Information that has become known to the public generally through no fault or
breach of mine or that the Company regularly gives to third parties without restriction on use or
disclosure. Upon termination of my work with the Company, I will promptly deliver to the Company
all documents and materials of any nature pertaining to my work with the Company, and I will not
take with me any documents or materials or copies thereof containing any Confidential Information.



5. Other Agreements. I represent that my performance of all the terms of this Agreement and
my duties as an employee of the Company will not breach any invention assignment agreement,
confidential information agreement, non-competition agreement or other agreement with any former
employer or other party. I represent that I will not bring with me to the Company, or use in the
performance of my duties for the Company, any documents or materials of a former employer that are
not generally available to the public.



6. Disclosure of this Agreement. I hereby authorize the Company to notify others,
including, but not limited to, customers of the Company and any of my future employers, of the
terms of this Agreement and my responsibilities hereunder.



7. Injunctive Relief and Enforcement. I understand that in the event of a breach or
threatened breach of this Agreement by me the Company may suffer irreparable harm and will
therefore be entitled to injunctive relief to enforce this Agreement. I also agree that if any
court shall determine that any provision of this Agreement is

unenforceable with respect to its term or scope, then such provision shall nonetheless by
enforceable by any such court upon such modified term or scope as may be determined by such court
to be reasonable and enforceable.



8. Governing Law. I agree that this Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.




	 	 	 	 	 
	 	 	 
	Date 9/25/2008 	
/s/ Peter Benton
 	 
	 	Signature 	 
	 	Peter Benton

2 Hillard Lane

Gladstone, NJ 07934 	 



 









 






	 	 	 	 	 



Exhibit C




BIO-IMAGING TECHNOLOGIES, INC.




Executive Retention Agreement





     THIS EXECUTIVE RETENTION AGREEMENT (this “Agreement”) by and between Bio-Imaging Technologies,
Inc., a Delaware corporation (the “Company”), and Peter Benton (the “Executive”) is made as of
September 30, 2008 (the “Effective Date”).



     WHEREAS, the Executive is a party to an Employment Agreement with the Company effective as of
the Effective Date (the “Employment Agreement”), and



     WHEREAS, the Company and the Executive desire to enter into this Agreement;



     NOW, THEREFORE, as an inducement for and in consideration of the Executive remaining in its
employ, the Company agrees that the Executive shall receive the severance benefits set forth in
this Agreement in the event the Executive’s employment with the Company is terminated under the
circumstances described below in connection with a Change in Control (as defined in Section 1.1).



     1. Key Definitions.



     As used herein, the following terms shall have the following respective meanings:



          1.1 “Change in Control” means an event or occurrence set forth in any one or more of
subsections (a) through (d) below (including an event or occurrence that constitutes a Change in
Control under one of such subsections but is specifically exempted from another such subsection):




               (a) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”)
of beneficial ownership of any capital stock of the Company if, after such acquisition, such Person
beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) more than
50% of either (x) the total fair market value of the then-outstanding shares of the Company’s stock
(the “Outstanding Company Stock”) or (y) the combined voting power of the then-outstanding
securities of the Company entitled to vote generally in the election of directors (the “Outstanding
Company Voting Securities”); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a Change in Control: (i) any
acquisition of securities directly from the Company (excluding an acquisition pursuant to the
exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable
for common stock or voting securities of the Company, unless the Person exercising, converting or
exchanging such security acquired such security directly from the Company or an underwriter or
agent of the Company), (ii) any acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company, or (iv) any acquisition by any corporation pursuant to a transaction
which complies with clauses (i) and (ii) of subsection (c) of this Section 1.1; or



 









 





               (b) a change in the composition of the Board over a period of twelve (12) months or less such
that the Continuing Directors (as defined below) fail to constitute a majority of the Board (or, if
applicable, the Board of Directors of a successor corporation to the Company), where the term
“Continuing Director” means at any date a member of the Board (i) who was a member of the Board on
the date of the execution of this Agreement or (ii) who was nominated or elected subsequent to such
date by at least a majority of the directors who were Continuing Directors at the time of such
nomination or election or whose election to the Board was recommended or endorsed by at least a
majority of the directors who were Continuing Directors at the time of such nomination or election;
provided, however, that there shall be excluded from this clause (ii) any
individual whose initial assumption of office occurred as a result of an actual or threatened
election contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents, by or on behalf of a person other than the Board; or



               (c) the consummation of a merger, consolidation, reorganization, recapitalization or statutory
share exchange involving the Company or a sale or other disposition of all or substantially all of
the assets of the Company in one or a series of related transactions over a 12-month period (a
“Business Combination”), unless, immediately following such Business Combination, each of the
following two conditions is satisfied: (i) all or substantially all of the individuals and
entities who were the beneficial owners of the Company’s outstanding common stock (the “Company
Outstanding Common Stock”) and Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50% of the
then-outstanding shares of common stock and the combined voting power of the then-outstanding
securities entitled to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Business Combination (which shall include, without limitation, a
corporation which as a result of such transaction owns the Company or substantially all of the
Company’s assets either directly or through one or more subsidiaries) (such resulting or acquiring
corporation is referred to herein as the “Acquiring Corporation”) in substantially the same
proportions as their ownership, immediately prior to such Business Combination, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, respectively; and (ii) no Person
(excluding any employee benefit plan (or related trust) maintained or sponsored by the Company or
by the Acquiring Corporation) beneficially owns, directly or indirectly, 50% or more of the then
outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of
the then-outstanding securities of such corporation entitled to vote generally in the election of
directors (except to the extent that such ownership existed prior to the Business Combination); or



               (d) a complete liquidation or dissolution of the Company approved by the stockholders of the
Company.



          1.2 “Change in Control Date” means the first date during the Term (as defined in
Section 2) on which a Change in Control occurs.




          1.3 “Cause” means:




               (a) the Executive’s willful and continued failure to substantially perform his reasonable
assigned duties as an officer of the Company (other than any such failure



 









 




resulting from incapacity due to physical or mental illness or any failure after the Executive
gives notice of termination for Good Reason), which failure is not cured within 30 days after a
written demand for substantial performance is received by the Executive from the Board of Directors
of the Company which specifically identifies the manner in which the Board of Directors believes
the Executive has not substantially performed the Executive’s duties; or




               (b) the conviction of the Executive of, or the entry of a pleading of guilty or nolo
contendere by the Executive to, any crime involving moral turpitude or any felony; or



               (c) the Executive’s commission of dishonesty or gross negligence which is materially and
demonstrably injurious to the Company; or



               (d) the Executive’s willful engagement in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Company; or



               (e) any material breach by the Executive of this Agreement or any employment agreement and
related agreements with the Company, including, but not limited to, any non-competition or
non-solicitation provision, which breach is not cured within 30 days after a written notice of such
breach is received by the Executive from the Board of Directors of the Company, which specifically
identifies such breach.



     For purposes of this Section 1.3, no act or failure to act by the Executive shall be
considered “willful” unless it is done, or omitted to be done, in bad faith or without reasonable
belief that the Executive’s action or omission was in the best interests of the Company.



     Notwithstanding the foregoing, if the Executive has an effective employment agreement with the
Company that contains a definition of “Cause” for purposes of termination of the Executive’s
employment with the Company, the definition of “Cause” contained in such effective employment
agreement shall be used in this Agreement.



          1.4 “Good Reason” means the occurrence, without the Executive’s written consent, of
any of the events or circumstances set forth in clauses (a) through (g) below. Notwithstanding the
occurrence of any such event or circumstance, such occurrence shall not be deemed to constitute
Good Reason if, prior to the Date of Termination specified in the Notice of Termination (each as
defined in Section 3.2(a)) given by the Executive in respect thereof, such event or circumstance
has been fully corrected and the Executive has been reasonably compensated for any losses or
damages resulting therefrom (provided that such right of correction by the Company shall only apply
to the first Notice of Termination for Good Reason given by the Executive):




               (a) the assignment to the Executive of duties materially inconsistent with the Executive’s
authority or responsibilities taken as a whole in effect immediately prior to the earliest to occur
of (i) the Change in Control Date, (ii) the date of the execution by the Company of the initial
written agreement or instrument providing for the Change in Control or (iii) the date of the
adoption by the Board of Directors of a resolution providing for the Change in Control (with the
earliest to occur of such dates referred to herein as the “Measurement



 









 




Date”), or any other action or omission by the Company which results in a material diminution
in such position, authority or responsibilities; or




               (b) a reduction in the Executive’s annual base salary as in effect on the Measurement Date; or



               (c) the failure by the Company to (i) continue in effect any material compensation or benefit
plan or program (including without limitation any life insurance, medical, health and accident or
disability plan and any vacation or automobile program or policy) (a “Benefit Plan”) in which the
Executive participates or which is applicable to the Executive immediately prior to the Measurement
Date, unless an equitable arrangement (embodied in an ongoing substitute or alternative plan, a
lump sum payment or increase in compensation) has been made with respect to such plan or program,
(ii) continue the Executive’s participation therein (or in such substitute or alternative plan) on
a basis not materially less favorable, both in terms of the amount of benefits provided and the
level of the Executive’s participation relative to other participants, than the basis existing
immediately prior to the Measurement Date or (iii) award cash bonuses to the Executive in amounts
and in a manner substantially consistent with past practice in light of the Company’s financial
performance; or



               (d) a change by the Company in the location at which the Executive performs his principal
duties for the Company to a new location that is outside a radius of 50 miles from the Executive’s
principal residence and outside a radius of 25 miles from the location at which the
Executive performed his principal duties for the Company immediately prior to the Measurement Date;
or



               (e) the failure of the Company to obtain the agreement from any successor to the Company to
assume and agree to perform this Agreement, as required by Section 6.1; or



               (f) a purported termination of the Executive’s employment which is not effected pursuant to a
Notice of Termination satisfying the requirements of Section 3.2(a); or



               (g) any material breach by the Company of this Agreement or any employment agreement with the
Executive, which breach is not cured within 30 days after a written notice of such breach is
received by the Company from the Executive, which specifically identifies such breach.



     The Executive’s right to terminate his employment for Good Reason shall not be affected by his
incapacity due to physical or mental illness.



          1.5 “Disability” means the Executive’s absence from the full-time performance of the
Executive’s duties with the Company for 180 consecutive calendar days as a result of incapacity due
to mental or physical illness which is determined to be total and permanent by a physician selected
by the Company or its insurers and reasonably acceptable to the Executive or the Executive’s legal
representative, which consent shall not be unreasonably withheld.




          1.6 “Code” means the Internal Revenue Code of 1986, as amended.




 









 








     2. Term of Agreement. This Agreement, and all rights and obligations of the parties
hereunder, shall take effect upon the Effective Date and shall expire upon the first to occur of
(a) the termination of the Executive’s employment with the Company more than 60 days prior to the
Change in Control Date, (b) the date 24 months after the Change in Control Date, if the Executive
is still employed by the Company as of such later date, or (c) the fulfillment by the Company of
all of its obligations under Sections 4 and 5.2 and 5.3 if the Executive’s employment with the
Company terminates within the period from 60 days prior to the Change in Control Date to 24 months
following the Change in Control Date.



     3. Employment Status; Termination Following Change in Control.



          3.1 Not an Employment Contract. The Executive acknowledges that this Agreement does
not constitute a contract of employment or impose on the Company any obligation to retain the
Executive as an employee and that this Agreement does not prevent the Executive from terminating
employment at any time.




          3.2 Termination of Employment.




               (a) If the Change in Control Date occurs during the Term, any termination of the Executive’s
employment by the Company or by the Executive within 24 months following the Change in Control Date
(other than due to the death of the Executive) shall be communicated by a written notice to the
other party hereto (the “Notice of Termination”), given in accordance with Section 7. Any Notice
of Termination shall: (i) indicate the specific termination provision (if any) of this Agreement
relied upon by the party giving such notice, (ii) to the extent applicable, set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated and (iii) specify the Date of Termination (as defined
below). The effective date of an employment termination shall be (i) the close of business on the
date specified in the Notice of Termination (which date may not be less than 15 days or more than
120 days after the date of delivery of such Notice of Termination) in the case of a termination by
the Company or by the Executive within 24 months following the Change in Control, (ii) in the case
of a termination due to the Executive’s death, the date of the Executive’s death, and (iii) in the
case of the Executive’s termination prior to the Change in Control, the date of such termination.
In the event the Company fails to satisfy the requirements of Section 3.2(a) regarding a Notice of
Termination, the purported termination of the Executive’s employment pursuant to such Notice of
Termination shall not be effective for purposes of this Agreement.



               (b) If a Change in Control Date occurs during the 60 days after the termination of the
Executive’s employment by the Company, the Company shall give the Executive notice of such Change
in Control.



               (c) The failure by the Executive or the Company to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any
right of the Executive or the Company, respectively, hereunder or preclude the Executive or the
Company, respectively, from asserting any such fact or circumstance in enforcing the Executive’s or
the Company’s rights hereunder.



 









 





               (d) Any Notice of Termination for Cause given by the Company must be given within 90 days of
the discovery by the Board of the occurrence of the event(s) or circumstance(s) that constitute(s)
Cause. Prior to any Notice of Termination for Cause being given (and prior to any termination for
Cause being effective), the Executive shall be entitled to a hearing before the Board of Directors
of the Company at which he may, at his election, be represented by counsel and at which he shall
have a reasonable opportunity to be heard. Such hearing shall be held on not less than 15 days
prior written notice to the Executive stating the Board of Directors’ intention to terminate the
Executive for Cause and stating in detail the particular event(s) or circumstance(s) which the
Board of Directors believes constitutes Cause for termination.



               (e) Any Notice of Termination for Good Reason given by the Executive must be given within 90
days of the discovery by the Executive of the occurrence of the event(s) or circumstance(s) that
constitute(s) Good Reason.



     4. Benefits to Executive.



          4.1 Stock Acceleration. If the Executive’s employment is terminated by the Company
other than for Cause, or the Executive terminates his employment for Good Reason, during the
Pre-Closing Period or at any time thereafter during the remainder (if any) of the Term, then,
effective upon such termination of employment, (a) each outstanding option to purchase shares of
Common Stock of the Company held at that time by the Executive shall become immediately exercisable
in full and shares of Common Stock of the Company received upon exercise of any options will no
longer be subject to a right of repurchase by the Company, and (b) each outstanding restricted
stock award shall be deemed to be fully vested and will no longer be subject to a right of
repurchase by the Company. Each option shall remain so exercisable until the expiration date of
the option term or (if earlier) the termination of that option in accordance with the provisions of
the applicable stock option agreement. For purposes of this Section 4.1, the Pre-Closing Period
means the period commencing with the Company’s execution of the definitive agreement for a Change
in Control transaction and ending upon the earlier of (i) the closing of the Change in Control
contemplated by such definitive agreement or (ii) the termination of such definitive agreement
without the consummation of the contemplated Change in Control.




          4.2 Compensation. If the Change in Control Date occurs during the Term and the
Executive’s employment with the Company terminates within the period from 60 days prior to the
Change in Control Date to 24 months following the Change in Control Date, the Executive shall be
entitled to the following benefits:




               (a) Termination Without Cause or for Good Reason. If the Executive’s employment with
the Company is terminated by the Company (other than for Cause, Disability or death) or by the
Executive for Good Reason within the period from 60 days prior to the Change in Control Date to 24
months following the Change in Control Date, then, subject to Section 4.2(a)(v) below, the
Executive shall be entitled to the following benefits:



                    (i) The Company shall pay to the Executive in cash the aggregate of the following amounts:



 









 





                         (1) The Company shall make a lump sum cash payment to the Executive equal to (A) the
Executive’s base salary through the Date of Termination, (B) the product of (x) the greater of (i)
Executive’s largest annual bonus for the most recently completed three (3) fiscal years and (ii)
the Executive’s target annual bonus at time of termination and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the Date of Termination, and the
denominator of which is 365 and (C) any accrued vacation pay, in each case to the extent not
previously paid (the sum of the amounts described in clauses (A) and (C) shall be hereinafter
referred to as the “Accrued Obligations” and the dollar amount described in clause (B) shall be
hereinafter referred to as the “Pro-Rata Bonus” ). Payment of the Accrued Obligations shall be
made on the Date of Termination, and the payment of the Pro-Rata Bonus shall be made on the 30th
day following the later of the Executive’s Separation from Service or the Change in Control Date
(the “Applicable Date”) or as soon as administratively practicable following such scheduled payment
date, but in no event later than the close of the calendar year in which the Applicable Date occurs
or (if later) the 15th day of the third calendar month following that date.



                         (2) Any compensation deferred on behalf of the Executive on the Date of Termination or the
Change in Control Date under any deferred compensation plan subject to Section 409A of the Internal
Revenue Code, as amended (the “Code”), shall be paid at the time or times specified for payment
pursuant to the provisions of such plan.



                         (3) The Company shall, in a series of 18 successive equal monthly installments pursuant to the
Company’s normal payroll practices, pay in cash to the Executive an amount equal to (A) 1.5
multiplied by (B) the sum of (x) the greater of (i) the Executive’s annual base salary for the most
recently completed fiscal year or (ii) the Executive’s current annual base salary at the time of
termination and (y) the greater of (i) Executive’s largest annual bonus for the most recently
completed three (3) fiscal years and (ii) the Executive’s target annual bonus at time of
termination. The first such installment shall be paid on the 30th day following the Applicable
Date or as soon as administratively practicable following such scheduled payment date, but in no
event later than the close of the calendar year in which the Applicable Date occurs or (if later)
the 15th day of the third calendar month following that date.



                    (ii) For a period not to exceed 18 months measured from the Applicable Date, the Company
shall, if the Executive elects under Code Section 4980B to continue health care coverage under the
Company’s group health plan for himself, his spouse and his eligible dependents following the Date
of Termination, provide such continued health care coverage at the Company’s expense;
provided, however, that such coverage at the Company’s expense shall immediately
terminate on the date the Executive is first covered under another employer’s heath benefit program
which provides substantially the same level of benefits without exclusion for pre-existing medical
conditions. Such health care coverage shall be at the same level and provide the same type of
benefits as would have been provided to them if the Executive’s employment had not been terminated
and they had continued to be covered under the applicable Benefit Plans in effect on the
Measurement Date or, if more favorable to the Executive and his family, in effect generally at any
time thereafter with respect to other peer executives of the Company and its affiliated companies.
Such continued health care coverage shall be provided pursuant to the provisions of this
subparagraph (ii) even if such coverage



 









 




extends beyond the period of statutorily-required coverage under Code Section 4980B, but
subject to earlier termination in accordance with the above proviso relating to coverage under
another employer’s plan. In the event the Company’s provision of such continued health care
coverage results in the recognition of taxable income (whether for federal, state or local income
tax purposes) by the Executive or his spouse or other eligible dependent, then the Executive and
his spouse and dependents shall each be responsible for the payment of the income and employment
tax liability resulting from such coverage, and the Company will not provide any tax gross-up
payments to the Executive (or any other person) with respect to such income and employment tax
liability. To the extent the health coverage under this Subparagraph (ii) is to be provided
through a self-funded program maintained by the Company, the Executive shall directly pay for the
costs to obtain such health coverage and shall, within 30 days after each periodic payment for a
reimbursable health care expense under this Section 4.2, submit appropriate evidence of such
payment to the Company for reimbursement, and the Company shall pay such reimbursement on the 30th
day following receipt of the submission. During the period such health care coverage remains in
effect hereunder, the following provisions shall govern the arrangement: (a) the amount of the
costs eligible for reimbursement in any one calendar year of such coverage shall not affect the
amount of the costs eligible for reimbursement in any other calendar year for which such
reimbursement is to be provided hereunder; (ii) no costs shall be reimbursed after the close of the
calendar year following the calendar year in which those costs were incurred; and (iii) the
Executive’s right to the reimbursement of such costs cannot be liquidated or exchanged for any
other benefit. To the extent the reimbursed heath care costs constitute taxable income to the
Executive, the Company shall report the reimbursement as taxable W-2 wages and collect the
applicable withholding taxes, and any remaining tax liability shall be the Executive’s sole
responsibility.




     In the event that the Executive’s Date of Termination occurs prior to the Change in Control
Date, then the period of coverage hereunder shall be reduced by the period from the Executive’s
Date of Termination to the Change in Control Date.



                    (iii) To the extent not previously paid or provided, the Company shall timely pay or provide
to the Executive any other amounts or benefits required to be paid or provided or which the
Executive is eligible to receive following the Executive’s termination of employment under any
plan, program, policy, practice, contract or agreement of the Company and its affiliated companies
(such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”). Each
of the Other Benefits shall be paid or provided as they become due and payable in one or more
installments under the applicable plan or arrangement.



                    (iv) For purposes of determining eligibility (but not the time of commencement of benefits) of
the Executive for retiree benefits to which the Executive is entitled, the Executive shall be
considered to have remained employed by the Company until 18 months after the Date of Termination.



                    (v) Notwithstanding the foregoing, if the Executive breaches any ongoing obligation with the
Company (by way of example and not by way of limitation, any breach of a non-competition or
non-solicitation provision with the Company), and such breach is not cured within 30 days of
written notice of such breach received by the Executive from the



 









 




Company, then the Company shall no longer be required to provide any of the benefits set forth
in this Section 4.2(a) above.




               (b) Termination More Than 60 Days Prior to Change in Control. If (a) a Change in
Control occurs, (b) the Executive’s employment with the Company is terminated more than 60 days
prior to the date on which the Change in Control occurs, and (c) it is reasonably demonstrated by
the Executive that such termination of employment (i) was at the request of a third party who has
taken steps reasonably calculated to effect a Change in Control or (ii) otherwise arose in
connection with or in anticipation of a Change in Control, then the Executive shall receive the
payments and benefits set forth in Section 4.2(a), subject to Section 4.2(a)(v).



               (c) Resignation without Good Reason; Termination for Death or Disability. If the
Executive voluntarily terminates his employment with the Company within the period from 60 days
prior to the Change in Control Date to 24 months following the Change in Control Date, excluding a
termination for Good Reason, or if the Executive’s employment with the Company is terminated by
reason of the Executive’s death or Disability within the period from 60 days prior to the Change in
Control Date to 24 months following the Change in Control Date, then the Company shall (i) pay the
Executive (or his estate, if applicable), in a lump sum in cash on the Date of Termination, the
Accrued Obligations, (ii) pay the Executive (or his estate, if applicable) the Pro-Rated Bonus in a
lump sum in cash on the 30th day following the Applicable Date or as soon as administratively
practicable following such scheduled payment date, but in no event later than the close of the
calendar year in which the Applicable Date occurs or (if later) the 15th day of the third calendar
month following that date, and (iii) pay or provide to the Executive the Other Benefits in
accordance with same payment and due date provisions in effect under subparagraph (iii) of Section
4.2(a). In addition, any vested compensation deferred on behalf of the Executive under any
deferred compensation plan subject to Code Section 409A shall be paid at the time or times
specified for payment pursuant to the provisions of such plan.



               (d) Termination for Cause. If the Company terminates the Executive’s employment with
the Company for Cause within the period from 60 days prior to the Change in Control Date to 24
months following the Change in Control Date, then the Company shall (i) pay the Executive, in a
lump sum in cash on the Date of Termination, the Accrued Obligations and (ii) timely pay or provide
to the Executive the Other Benefits in accordance with same payment and due date provisions in
effect under subparagraph (iii) of Section 4.2(a). In addition, any vested compensation deferred
on behalf of the Executive under any deferred compensation plan subject to Code Section 409A shall
be paid at the time or times specified for payment pursuant to the provisions of such plan.



          4.3 Section 409A. Certain payments contemplated by this Agreement may be “deferred
compensation” for purposes of Section 409A of the Code. Accordingly, the following provisions
shall be in effect for purposes of avoiding or mitigating any adverse tax consequences to the
Executive under Code Section 409A.




               (a) It is the intent of the parties that the provisions of this Agreement comply with all
applicable requirements of Code Section 409A. Accordingly, to the extent there is any ambiguity as
to whether any provisions of this Agreement would otherwise contravene



 









 




one or more requirements or limitations of Code Section 409A, then such provisions shall be
interpreted and applied in a manner that does not result in a violation of the applicable
requirements or limitations of Code Section 409A and the applicable Treasury Regulations
thereunder. If any federal legislation is enacted during the term of this Agreement which imposes
a dollar limit on deferred compensation, then the Executive will co-operate with the Company in
restructuring any items of compensation under this Agreement that are deemed to be deferred
compensation subject to such limitation; provided such restructuring shall not reduce the dollar
amount of any such item or adversely affect the vesting provisions applicable to such item or
otherwise reduce the present value of that item.




               (b) Notwithstanding any provision to the contrary in this Agreement, no payments or benefits
to which the Executive may become entitled under Section 4 or Section 5.3 of this Agreement shall
be made or provided to him prior to the earlier of (i) the expiration of the six (6)-month period
measured from the date of the Executive’s Separation from Service or (ii) the date of his death, if
the Executive is deemed, pursuant to the procedures established by the Compensation Committee in
accordance with the applicable standards of Code Section 409A and the Treasury Regulations
thereunder and applied on a consistent basis for all non-qualified deferred compensation plans of
the Employer Group subject to Code Section 409A, to be a “specified employee” at the time of such
Separation from Service and such delayed commencement is otherwise required in order to avoid a
prohibited distribution under Code Section 409A(a)(2). Upon the expiration of the applicable Code
Section 409A(a)(2) deferral period, all payments and benefits deferred pursuant to this Section 4.3
(whether they would have otherwise been payable in a single sum or in installments in the absence
of such deferral) shall be paid or reimbursed to the Executive in a lump sum, and any remaining
payments and benefits due under this Agreement shall be paid or provided in accordance with the
normal payment dates specified for them herein. The specified employees subject to such a delayed
commencement date shall be identified on December 31 of each calendar year. If the Executive is so
identified on any such December 31, he shall have specified employee status for the twelve
(12)-month period beginning on April 1 of the following calendar year. For purposes of this
Agreement, including (without limitation) this Section 4.3(b), the following definitions shall be
in effect:



                    (i) “Separation from Service” shall mean the date on which the level of the Executive’s bona
fide services as an Employee (or non-employee consultant) permanently decreases to a level that is
not more than twenty percent (20%) of the average level of services the Executive rendered as an
Employee during the immediately preceding thirty-six (36) months (or any shorter period of such
Employee service). Any such determination, however, shall be made in accordance with the
applicable standards of the Treasury Regulations issued under Code Section 409A. In addition to
the foregoing, a Separation from Service will not be deemed to have occurred while the Executive is
on a sick leave or other bona fide leave of absence if the period of such leave does not exceed six
(6) months or any longer period for which the Executive’s right to reemployment with the Company is
provided by either statute or contract; provided, however, that in the event of a leave of absence
due to any medically determinable physical or mental impairment that can be expected to result in
death or to last for a continuous period of not less than six (6) months and that causes the
Executive to be unable to perform his duties as an Employee, no Separation from Service shall be
deemed to occur during the first twenty-nine (29) months of such leave. If the period of the leave
exceeds six (6) months



 









 




(or twenty-nine (29) months in the event of disability as indicated above) and the Executive
is not provided with a right to reemployment by either statute or contract, then the Executive will
be deemed to have Separated from Service on the first day immediately following the expiration of
the applicable six (6)-month or twenty-nine (29)-month period.




                    (ii) The Executive shall be deemed to remain an “Employee” for so long he remains in the
employ of at least one member of the Employer Group, subject to the control and direction of the
employer entity as to both the work to be performed and the manner and method of performance.



                    (iii) “Employer Group” shall mean the Company and each member of the group of commonly
controlled corporations or other businesses that include the Company, as determined in accordance
with Sections 414(b) and (c) of the Code and the Treasury Regulations thereunder, except that in
applying Sections 1563(1), (2) and (3) for purposes of determining the controlled group of
corporations under Section 414(b), the phrase “at least 50 percent” shall be used instead of “at
least 80 percent” each place the latter phrase appears in such sections, and in applying Section
1.414(c)-2 of the Treasury Regulations for purposes of determining trades or businesses that are
under common control for purposes of Section 414(c), the phrase “at least 50 percent” shall be used
instead of “at least 80 percent” each place the latter phrase appears in Section 1.414(c)-2 of the
Treasury Regulations.



          4.4 Taxes.




               (a) Notwithstanding any other provision of this Agreement, except as set forth in Section
4.4(b), in the event that the Company undergoes a “Change in Ownership or Control” (as defined
below), the Company shall not be obligated to provide to the Executive a portion of any “Contingent
Compensation Payments” (as defined below) that the Executive would otherwise be entitled to receive
to the extent necessary to eliminate any “excess parachute payments” (as defined in Section
280G(b)(1) of the Internal Revenue Code of 1986, as amended (the “Code”)) for the Executive. For
purposes of this Section 4.4, the Contingent Compensation Payments so eliminated shall be referred
to as the “Eliminated Payments” and the aggregate amount (determined in accordance with Proposed
Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent
Compensation Payments so eliminated shall be referred to as the “Eliminated Amount.” To the extent
any such elimination is required, the dollar amount of the Executive’s cash severance under Section
4.2 of this Agreement (other than the Pro-Rata Bonus) will be reduced first, with such reduction to
be effected pro-rata as to each payment, then the dollar amount of the Executive’s Pro-Rata Bonus
shall be reduced next the number of options or other equity awards that are to vest on an
accelerated basis pursuant to Section 4.1 of this Agreement shall be reduced (based on the value of
the parachute payment resulting from such acceleration) in the same chronological order in which
awarded, and finally the Executive’s remaining benefits will be reduced in a manner that not result
in any impermissible deferral or acceleration of benefits under Section 409A of the Code.



               (b) Notwithstanding the provisions of Section 4.4(a), no such reduction in Contingent
Compensation Payments shall be made if (i) the Eliminated Amount (computed without regard to this
sentence) exceeds (ii) 110% of the aggregate present value (determined in accordance with Proposed
Treasury Regulation Section 1.280G-1, Q/A-31 and



 









 




Q/A-32 or any successor provisions) of the amount of any additional taxes that would be
incurred by the Executive if the Eliminated Payments (determined without regard to this sentence)
were paid to him (including, state and federal income taxes on the Eliminated Payments, the excise
tax imposed by Section 4999 of the Code payable with respect to all of the Contingent Compensation
Payments in excess of the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code),
and any withholding taxes). The override of such reduction in Contingent Compensation Payments
pursuant to this Section 4.4(b) shall be referred to as a “Section 4.4(b) Override.” For purpose
of this paragraph, if any federal or state income taxes would be attributable to the receipt of any
Eliminated Payment, the amount of such taxes shall be computed by multiplying the amount of the
Eliminated Payment by the maximum combined federal and state income tax rate provided by law.




               (c) For purposes of this Section 4.4 the following terms shall have the following respective
meanings:



                    (i) “Change in Ownership or Control” shall mean a change in the ownership or effective control
of the Company or in the ownership of a substantial portion of the assets of the Company determined
in accordance with Section 280G(b)(2) of the Code.



                    (ii) “Contingent Compensation Payment” shall mean any payment (or benefit) in the nature of
compensation that is made or made available (under this Agreement or otherwise) to a “disqualified
individual” (as defined in Section 280G(c) of the Code) and that is contingent (within the meaning
of Section 280G(b)(2)(A)(i) of the Code) on a Change in Ownership or Control of the Company.



               (d) Any payments or other benefits otherwise due to the Executive following a Change in
Ownership or Control that could reasonably be characterized (as determined by the Company) as
Contingent Compensation Payments (the “Potential Payments”) shall not be made until the dates
provided for in this Section 4.4(d). Within 30 days after the Applicable Date, the Company shall
determine and notify the Executive (with reasonable detail regarding the basis for its
determinations) (i) which Potential Payments constitute Contingent Compensation Payments, (ii) the
Eliminated Amount and which Contingent Compensation Payments or portions thereof (the aggregate
amount of which, determined in accordance with Proposed Treasury Regulation Section 1.280G-1,
Q/A-30 or any successor provision, shall be equal to the Eliminated Amount) shall be treated as
Eliminated Payments and (iii) whether the Section 4.4(b) Override is applicable. Within 30 days
after delivery of such notice to the Executive, the Executive shall deliver a response to the
Company (the “Executive Response”) stating either (A) that he agrees with the Company’s
determination pursuant to the preceding sentence shall be treated as Eliminated Payments or (B)
that he disagrees with such determination, in which case he shall set forth (i) which Potential
Payments should be characterized as Contingent Compensation Payments, (ii) the Eliminated Amount,
(iii) whether the Section 4.4(b) Override is applicable, and (iv) which (if any) Contingent
Compensation Payments, or portions thereof (the aggregate amount of which, determined in accordance
with Proposed Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision, shall be
equal to the Eliminated Amount, if any), shall be treated as Eliminated Payments in accordance with
Section 4.4(a). In the event that the Executive fails to deliver an Executive Response on or
before the required date, the Company’s initial determination shall be final and the Contingent



 









 




Compensation Payments that shall be treated as Eliminated Payments shall be determined by the
Company in its absolute discretion in accordance with Section 4.4(a), and the remaining Potential
Payments to which the Executive is entitled shall be paid in accordance with the same payment date
provisions in effect for payments which become due under the following sentence, except that the
scheduled payment shall be the third business day following the expiration of the 30-day notice
period for the Executive’s Response. If the Executive states in the Executive Response that he
agrees with the Company’s determination, the Company shall make each of the Potential Payments to
the Executive on the third business day following delivery to the Company of the Executive Response
or as soon as administratively practicable following such scheduled payment date, but in no event
later than the close of the calendar year in which the scheduled payment occurs or (if later) the
15th day of the 3rd calendar month following such scheduled payment date; provided, however, that
any Potential Payments which are not due to be made until after such date shall be made on the date
on which they are due. If the Executive states in the Executive Response that he disagrees with
the Company’s determination, then, for a period of 60 days following delivery of the Executive
Response, the Executive and the Company shall use good faith efforts to resolve such dispute. If
such dispute is not resolved within such 60-day period, such dispute shall be settled exclusively
by arbitration in Philadelphia, Pennsylvania, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the arbitrator’s award in any
court having jurisdiction. The Company shall pay to the Executive each of those Potential Payments
as to which there is no dispute between the Company and the Executive regarding whether they should
be made, with such payment to be made on the third business day following delivery to the Company
of the Executive Response or as soon after that scheduled payment date as administratively
practicable, but in no event later than the close of the calendar year in which such scheduled
payment date occurs or (if later) the 15th day of the 3rd calendar month following such scheduled
payment date; provided, however, that any Potential Payments which are not due to be made until
after such date shall be made on the date on which they are due. The balance of the Potential
Payments shall be made on the third business day following the resolution of such dispute or as
soon as administratively practicable following such scheduled payment date, but in no event later
than the close of the calendar year in which the dispute is resolved. Subject to the limitations
contained in Sections 4.4(a) and (b) hereof, the amount of any payments to be made to the Executive
following the resolution of such dispute shall be increased by amount of the accrued interest
thereon computed at the prime rate announced from time to time by Citibank, N.A., compounded
monthly from the date that such payments originally were due.




               (e) The provisions of this Section 4.4 are intended to apply to any and all payments or
benefits available to the Executive under this Agreement or any other agreement or plan of the
Company under which the Executive receives Contingent Compensation Payments.



          4.5 Mitigation. The Executive shall not be required to mitigate the amount of any
payment or benefits provided for in this Section 4 by seeking other employment or otherwise.




     5. Disputes.



 









 





          5.1 Settlement of Disputes; Arbitration. All claims by the Executive for benefits
under this Agreement shall be directed to and determined by the Board of Directors of the Company
and shall be in writing. Any denial by the Board of Directors of a claim for benefits under this
Agreement shall be delivered to the Executive in writing and shall set forth the specific reasons
for the denial and the specific provisions of this Agreement relied upon. The Board of Directors
shall afford a reasonable opportunity to the Executive for a review of the decision denying a
claim. Any further dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in Philadelphia, Pennsylvania, in accordance with the rules
of the American Arbitration Association then in effect. Judgment may be entered on the
arbitrator’s award in any court having jurisdiction.




          5.2 Expenses. The Company agrees to pay as incurred, to the full extent permitted by
law, all legal, accounting and other fees and expenses which the Executive may reasonably incur as
a result of any claim or contest (so long as a court of competent jurisdiction renders a final
order, decree or judgment in favor of the Executive, and after the time for appeal has expired and
no appeal has been perfected for such final order, decree or judgment) by the Company, the
Executive or others regarding the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result of any contest by
the Executive regarding the amount of any payment or benefits pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Code.




          5.3 Compensation During a Dispute. If the Change in Control Date occurs during the
Term and the Executive’s employment with the Company terminates within the period from 60 days
prior to the Change in Control Date to 24 months following the Change in Control Date, and the
right of the Executive to receive benefits under Section 4 (or the amount or nature of the benefits
to which he is entitled to receive) are the subject of a dispute between the Company and the
Executive, the Company shall continue (a) to pay to the Executive his base salary in effect as of
the Measurement Date and (b) to provide benefits to the Executive and the Executive’s family at
least equal to those which would have been provided to them, if the Executive’s employment had not
been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date,
until such dispute is resolved either by mutual written agreement of the parties or by an
arbitrator’s award pursuant to Section 5.1. Following the resolution of such dispute, the sum of
the payments made to the Executive under clause (a) of this Section 5.3 shall be deducted from any
cash payment which the Executive is entitled to receive pursuant to Section 4; and if such sum
exceeds the amount of the cash payment which the Executive is entitled to receive pursuant to
Section 4, the excess of such sum over the amount of such payment shall be repaid (without
interest) by the Executive to the Company within three (3) business days following the resolution
of such dispute.




     6. Successors.



          6.1 Successor to Company. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Company expressly to assume and agree to perform this Agreement to the
same extent that the Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain an assumption of this



 









 






Agreement at or prior to the effectiveness of any succession shall be a breach of this
Agreement and shall constitute Good Reason if the Executive elects to terminate employment, except
that for purposes of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement, “Company” shall mean
the Company as defined above and any successor to its business or assets as aforesaid which assumes
and agrees to perform this Agreement, by operation of law or otherwise.




          6.2 Successor to Executive. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive or his family hereunder if the Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the executors, personal representatives or administrators of
the Executive’s estate.




     7. Notice. All notices, instructions and other communications given hereunder or in
connection herewith shall be in writing. Any such notice, instruction or communication shall be
sent either (i) by registered or certified mail, return receipt requested, postage prepaid, or (ii)
prepaid via a reputable nationwide overnight courier service, in each case addressed to the
Company, at 826 Newtown-Yardley Road, Newtown, Pennsylvania 18940, and to the Executive at the
Executive’s address indicated on the signature page of this Agreement (or to such other address as
either the Company or the Executive may have furnished to the other in writing in accordance
herewith). Any such notice, instruction or communication shall be deemed to have been delivered
five business days after it is sent by registered or certified mail, return receipt requested,
postage prepaid, or one business day after it is sent via a reputable nationwide overnight courier
service. Either party may give any notice, instruction or other communication hereunder using any
other means, but no such notice, instruction or other communication shall be deemed to have been
duly delivered unless and until it actually is received by the party for whom it is intended.



     8. Miscellaneous.



          8.1 Employment by Subsidiary. For purposes of this Agreement, the Executive’s
employment with the Company shall not be deemed to have terminated solely as a result of the
Executive continuing to be employed by a wholly-owned subsidiary of the Company.




          8.2 Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.




          8.3 Injunctive Relief. The Company and the Executive agree that any breach of this
Agreement by the Company is likely to cause the Executive substantial and irrevocable damage and
therefore, in the event of any such breach, in addition to such other remedies which may be
available, the Executive shall have the right to specific performance and injunctive relief.




 









 








          8.4 Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the internal laws of the Commonwealth of Pennsylvania, without
regard to conflicts of law principles.




          8.5 Waivers. No waiver by the Executive at any time of any breach of, or compliance
with, any provision of this Agreement to be performed by the Company shall be deemed a waiver of
that or any other provision at any subsequent time.




          8.6 Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original but both of which together shall constitute one and the same
instrument.




          8.7 Tax Withholding. Any payments provided for hereunder shall be subject to the
Company’s collection of the any applicable tax withholding required under federal, state or local
law, and the Executive shall only be entitled to the amount of each payment remaining the
applicable withholding taxes have been collected.




          8.8 Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto in respect of the subject
matter contained herein; and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and cancelled.




          8.9 Amendments. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Executive.




          8.10 Executive’s Acknowledgements. The Executive acknowledges that he or she: (a)
has read this Agreement; (b) has been represented in the preparation, negotiation, and execution of
this Agreement by legal counsel of the Executive’s own choice or has voluntarily declined to seek
such counsel; (c) understands the terms and consequences of this Agreement; and (d) understands
that the law firm of Morgan, Lewis & Bockius LLP is acting as counsel to the Company in connection
with the transactions contemplated by this Agreement, and is not acting as counsel for the
Executive.




 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first set forth above.



	 	 	 	 	 	 	 
	 	 	BIO-IMAGING TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark L. Weinstein	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:
	 	Mark L. Weinstein	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	President & CEO	 	 
	 
	 	 	 	 	 	 
	 	 	EXECUTIVE	 	 






	 	 	 	 	 	 	 
	 	 	/s/ Peter Benton           9/19/2008	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Peter Benton	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	2 Hillard Lane	 	 
	 

	 	 	 	Gladstone, NJ 07934