SEVERANCE AGREEMENT
Exhibit 10.2
SEVERANCE AGREEMENT (this “Agreement”) dated as of November 30,2010, by and between BIOSCRIP,
INC., a Delaware corporation, with its principal place of business at 000 Xxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as the “Company”), and Xxxxx X. Xxxxxxx, Xx.,
residing at 0000 Xxxxxxxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 (hereinafter referred to as the
“Executive”).
WHEREAS, the Executive and the Company are parties to an employment offer letter dated as of
November 29, 2010 (the “Offer Letter”)
WHEREAS, pursuant to the terms of the Offer Letter the Company agreed to enter into this
Agreement in order to provide Executive with the severance payment protection upon termination of
Executive’s employment with the Company;
Accordingly, the parties hereto agree as follows:
1. Severance upon Death or Disability.
1.1 Termination upon Death. If the Executive dies while employed by the Company:
(i) the Executive’s estate or beneficiaries shall be entitled to receive any salary and other
benefits (including bonuses awarded or declared but not yet paid) earned and accrued prior to the
date of termination and reimbursement for expenses incurred prior to the date of termination; (ii)
all fully vested and exercisable stock options (“Options”) previously or hereafter granted by the
Company to Executive under any bonus program and held by the Executive may be exercised by his
estate for a period of one (1) year from and after the date of the Executive’s death unless such
longer period is set forth in the grant agreement evidencing the Options ; (iii) any restricted
stock units (“Restricted Stock Units”) granted under any bonus program or otherwise granted shall
vest and be free from restrictions on transferability (other than restrictions on transfer imposed
under Federal and State securities laws); (iv) any shares of common stock granted (but expressly
excluding therefrom grants of stock conditioned upon the achievement of performance or other
financial measurements that have not met, “Stock Grants”) to Executive under any bonus program that
are subject to forfeiture shall become non- forfeitable and shall be fully vested and transferable;
(v) the Executive’s estate and beneficiaries shall have no further rights to any other compensation
or benefits hereunder on or after the termination of employment, or any other rights hereunder; and
(vi) all unvested stock appreciation rights (“SARs”) shall immediately vest at the then current
value (i.e., the difference between (A) the fair market value of one share of the Company’s Common
Stock as of the date such SAR is exercised minus (B) the initial stock price specified in the SAR
certificate) and shall be paid in cash notwithstanding any provision to- the contrary set forth in
the SAR certificate or the Company’s Amended and Restated 2008 Equity Incentive Plan (the “Plan”).
Notwithstanding anything to the contrary contained in this Section 1.1, it is expressly understood
and agreed that nothing in the foregoing clause (v) shall restrict the ability of the Company to
amend or terminate any benefits plans and programs from time to time in its sole and absolute
discretion; provided, however, that the Company shall in no event be required to provide any
coverage under such benefit plans and programs after such time as the
Executive becomes entitled to coverage under the benefit plans and programs of another
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employer or recipient of the Executive’s services (and provided, further, that such entitlement
shall be determined without regard to any individual waivers or other arrangements).
1.2 Severance upon Disability. Upon termination of employment by virtue of
Executive’s disability, (i) the Executive shall receive salary and other benefits (including
bonuses awarded or declared but not yet paid) earned and accrued prior to the effective date of the
termination of employment and reimbursement for expenses incurred prior to the effective date of
the termination of employment; (ii) all fully vested and exercisable Options previously or
hereafter granted and held by the Executive may be exercised by the Executive or his estate or
beneficiaries for a period of one (1) year from and after the date of the Executive’s termination
due to disability unless such longer period is set forth in the grant agreement evidencing the
Options (iii) any Restricted Stock Units granted under any bonus program or otherwise granted shall
vest and be free from restrictions on transferability (other than restrictions on transfer imposed
under Federal and State securities laws); (iv) any Stock Grants made to Executive under any bonus
program that are subject to forfeiture shall become non-forfeitable and shall be fully vested and
transferable; (v) if the Executive’s disability shall continue for a period of six (6) months after
his termination, the Executive shall receive for a period for one (1) year after termination of
employment (A) the annual salary that the Executive was receiving at the time of such termination
of employment (“Annual Salary”), less the gross proceeds paid to the Executive on account of Social
Security or other similar benefits and Company provided long-term disability insurance, payable in
accordance with the customary payroll practices of the Company, but in any event in installments
not less frequently than monthly; and (B) such continuing coverage under the benefit plans and
programs the Executive would have received in the absence of such termination, including, without
limitation, coverage under any health insurance plans or programs which are available or provided
to senior executives of the Company generally, and at the same cost to Executive, if any, in each
case to the extent that the Executive is eligible under the terms of such plans or programs; it
being expressly understood and agreed that nothing in this clause (v) shall restrict the ability of
the Company to amend or terminate such benefits plans and programs from time to time in its sole
and absolute discretion; provided, however, that the Company shall in no event be required to
provide any salary continuation under subsection (v) above or coverage under such benefit plans and
programs after such time as the Executive becomes entitled to salary or coverage under the benefit
plans and programs of another employer or recipient of the Executive’s services (and provided,
further, that such entitlement shall be determined without regard to any individual waivers or
other arrangements); (vi) all unvested SARs shall immediately vest at the then current value (i.e.,
the difference between (A) the fair market value of one share of the Company’s Common Stock as of
the date such SAR is exercised minus (B) the initial stock price specified in the SAR certificate)
and shall be paid in cash notwithstanding any provision to the contrary set forth in the SAR
certificate or the Plan; and (vii) the Executive shall have no further rights to any other
compensation or benefits hereunder on or after the termination of employment, or any other rights
hereunder. Notwithstanding the foregoing, if and only to the extent that Executive’s disability is
a trigger for the payment of deferred compensation, as defined in Section 409A of the Code,
“disability” shall have the meaning set forth in Section 409A(a)(2)(C) of the Code.
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2. Severance in the Event of Certain Terminations of Employment
2.1 Termination for “Cause”; Termination of Employment by the Executive Without Good
Reason.
2.1.1 For purposes of this Agreement, “Cause” shall mean (i) the Executive’s conviction of
a felony or a crime of moral turpitude; or (ii) the Executive’s commission of unauthorized acts
intended to result in the Executive’s personal enrichment at the material expense of the Company;
or (iii) the Executive’s material violation of the Executive’s duties or responsibilities to the
Company which constitute willful misconduct or dereliction of duty, provided as to any termination
pursuant to Section 2.1.1(iii), a majority of the Compensation Committee of the Board of Directors
(or any successor committee thereto) shall first approve such “Cause” termination before the
Company effectuates such a termination..
2.1.2 If the Company terminates the Executive for Cause, (i) the Executive shall receive
Annual Salary and other benefits (including bonuses awarded or declared but not yet paid) earned
and accrued prior to the effective date of the termination of employment (and reimbursement for
expenses incurred prior to the effective date of the termination of employment); (ii) all unvested
options and SARs shall lapse and terminate immediately and may no longer be exercised; (iii) any
unvested Restricted Stock Units shall terminate immediately; (iv) any Stock Grants made to
Executive under any bonus program that are subject to forfeiture shall be immediately forfeited;
and (v) the Executive shall have no further rights to any other compensation or benefits hereunder
on or after the termination of employment, or any other rights hereunder.
2.2 The Executive may terminate his employment upon written notice to the Company which
specifies an effective date of termination not less than 30 days from the date of such notice. If
the Executive terminates his employment and the termination is not covered by Sections 1 or 2.2
hereof, (i) the Executive shall receive the Annual Salary and other benefits (including bonuses
awarded or declared but not yet paid) earned and accrued prior to the effective date of the
termination of employment (and reimbursement for expenses incurred prior to the effective date of
the termination of employment); (ii) all fully vested and exercisable options granted by the
Company to the Executive under any bonus program or otherwise and held by the Executive may be
exercised by the Executive for a period of 30 days from and after the date of the Executive’s
effective date of termination unless such longer period is set forth in the grant agreement
evidencing the Options; (iii) any unvested Restricted Stock Units hereafter granted shall terminate
immediately; (iv) any Stock Grants made to Executive under any bonus program that are subject to
forfeiture shall be immediately forfeited; (vi) all unvested SARs shall immediately vest at the
then current value (i.e., the difference between (A) the fair market value of one share of the
Company’s Common Stock as of the date such SAR is exercised minus (B ) the initial stock price
specified in the SAR certificate) and shall be paid in cash notwithstanding any provision to the
contrary set forth in the SAR certificate or the Plan; and (vi) the Executive shall have no further
rights to any compensation or other benefits hereunder on or after the termination of employment,
or any other rights hereunder
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2.3 Termination Without Cause; Termination for Good Reason.
2.3.1 For purposes of this Agreement, “Good Reason” shall mean the existence of any one or
more of the following conditions that shall continue for more than 45 days following written notice
thereof by the Executive to the Company: (i) the material change in or reduction of the Executive’s
authority, duties and responsibilities, or the assignment to the Executive of duties materially
inconsistent with the Executive’s position or positions with the Company; or (ii) a reduction in
the Executive’s then current Annual Salary without the Executive’s consent; or (iii) within two (2)
years of the date of this Agreement, Executive (A) shall be required to relocate more than 50 miles
from his residence in Cincinnati, OH, or (B) is prohibited from working one business day per week
in the Cincinnati, OH vicinity.
2.3.2 If the Company terminates the Executive’s employment and the termination is not
covered by Section 1 or 2.1 hereof: (i) the Executive shall receive Annual Salary and other
benefits (including bonuses awarded or declared but not yet paid) earned and accrued under this
Agreement prior to the effective date of the termination of employment (and reimbursement for
expenses incurred prior to the effective date of the termination of employment); (ii) the Executive
shall receive for one (1) year after termination of employment, (A) the Annual Salary that the
Executive was receiving at the time of such termination of employment, payable in accordance with
the customary payroll practices of the Company, in installments not less frequently than monthly,
(B) such continuing coverage under the benefit plans and programs the Executive would have received
in the absence of such termination, provided, however, continuation of health insurance coverage
under such benefit plans and programs shall only be provided in accordance with subparagraph (C);
and (C) upon proper election by the Executive, his spouse or children, COBRA Continuation Coverage
for himself, his spouse and his children at a rate equal to what is paid for such coverage by
active employees of the Company; it being expressly understood and agreed that nothing in this
clause (ii) shall restrict the ability of the Company to amend or terminate such benefits plans and
programs from time to time in its sole and absolute discretion; provided, however, that the Company
shall in no event be required to provide any salary continuation or coverage under such benefit
plans and programs after such time as the Executive becomes entitled to salary or coverage under
the benefit plans and programs of another employer or recipient of the Executive’s services (and
provided, further, that such entitlement shall be determined without regard to any individual
waivers or other arrangements); (iii) outstanding unvested Options previously or hereafter granted
to the Executive and held by the Executive shall vest and become immediately exercisable and all
Options held by the Executive on the effective date of termination may be exercised by the
Executive for a period of 90 days from and after the date of the Executive’s effective date of
termination unless such longer period is set forth in the grant agreement evidencing the Options;
(iv) the Executive shall become vested in any pension or other deferred compensation other than
pension or deferred compensation under a plan intended to be qualified under Section 401(a) or
403(a) of the Internal Revenue Code of 1986, as amended; (v) any Restricted Stock Units granted
under any bonus program or otherwise granted shall vest and be free from restrictions on
transferability (other than restrictions on transfer imposed under Federal and State securities
laws) as of the date of the Executive’s effective date of termination; (vi) any Stock Grants made
to Executive under any bonus program that are subject to forfeiture shall become non-forfeitable
and shall be fully vested and transferable as of the date of the Executive’s effective date of
termination; ; (vii) all unvested SARs shall immediately vest at the then current value (i.e., the
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difference between (A) the fair market value of one share of the Company’s Common Stock as of
the date such SAR is exercised minus (B ) the initial stock price specified in the SAR certificate)
and shall be paid in cash notwithstanding any provision to the contrary set forth in the SAR
certificate or the Plan; (viii) the Executive shall have no further rights to any other
compensation or benefits hereunder on or after the termination of employment, or any other rights
hereunder. For the purpose of this Agreement, the term COBRA Continuation Coverage means healthcare
continuation coverage rights which must be made available to the Executive pursuant to Code section
4980B, or any other similar or corresponding state or federal legislation.
2.3.3 If the Executive terminates his employment for Good Reason and such termination is
not covered by Section 2.3.2 hereof, (i) the Executive shall receive Annual Salary and other
benefits (including bonuses awarded but not yet paid) earned and accrued prior to the effective
date of the termination of employment (and reimbursement for expenses incurred prior to the
effective date of the termination of employment); (ii) the Executive shall receive for a period of
one (1) years after termination of employment (A) the Annual Salary that the Executive was
receiving at the time of such termination of employment, payable in accordance with the customary
payroll practices of the Company applicable to senior executives, in installments not less
frequently than monthly, and (B) such continuing coverage under the benefit plans and programs the
Executive would have received in the absence of such termination, including, without limitation,
coverage under any health insurance plans or programs which are available or provided to senior
executives of the Company generally, and at the same cost to Executive, if any, in each case to the
extent that the Executive is eligible under the terms of such plans or programs, and, in the event
the Executive is not eligible under the terms of plans or programs providing healthcare coverage to
senior executives of the Company generally, then, upon proper election by the Executive, his spouse
or children, COBRA Continuation Coverage for himself; his spouse and his children at a rate equal
to what is paid for such coverage by active employees of the Company; it being expressly understood
and agreed that nothing in this clause (ii) shall restrict the ability of the Company to amend or
terminate such benefits plans and programs from time to time in its sole and absolute discretion;
provided, however, that the Company shall in no event be required to provide any coverage under
such benefit plans and programs after such time as the Executive becomes entitled to coverage under
the benefit plans and programs of another employer or recipient of the Executive’s services (and
provided, further, that such entitlement shall be determined without regard to any individual
waivers or other arrangements); (iii) all outstanding unvested Options previously or hereafter
granted to the Executive under any benefit program shall vest and become immediately exercisable
unless such longer period is set forth in the grant agreement evidencing the Options; (iv) the
Executive shall become vested in any pension or other deferred compensation other than pension or
deferred compensation under a plan intended to be qualified under Section 401(a) or 403(a) of the
Internal Revenue Code of 1986, as amended; (v) any Restricted Stock Units granted under any bonus
program or otherwise granted shall vest and be free from restrictions on transferability (other
than restrictions on transfer imposed under Federal and State securities laws); (vi) any Stock
Grants made to Executive under any bonus program that are subject to forfeiture shall become
non-forfeitable and shall be fully vested and transferable; (vii) all unvested SARs shall
immediately vest at the then current value (i.e., the difference between (A) the fair market value
of one share of the Company’s Common Stock as of the date such SAR is exercised minus (B ) the
initial stock price specified in the SAR certificate) and shall be paid in cash notwithstanding any
provision to the contrary set forth in the SAR certificate or the Plan; and (viii) the Executive
shall have no
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further rights to any other compensation or benefits hereunder on or after the termination of
employment, or any other rights hereunder.
3. Other Provisions
3.1 To the extent applicable, it is intended that this Agreement comply with the
provisions of Section 409A in accordance with the provisions below:
| a) | The Agreement will be administered and interpreted in a manner consistent with this intent, and any provision that would cause the Agreement to fail to satisfy Section 409A will have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent permitted by Section 409A). In addition, the parties shall cooperate fully with one another to ensure compliance with Section 409A, including, without limitation, adopting amendments to arrangements subject to Section 409A and operating such arrangements in compliance with Section 409A. |
| b) | Notwithstanding any other provision of the Agreement to the contrary, to the extent any payment or benefit to be paid or provided to Executive pursuant to the Agreement as a result of the termination of his employment constitutes “non- qualified deferred compensation” subject to Section 409A, such payment or benefit shall be paid or provided to the Executive under the Agreement at such time as the Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A (without regard to whether such “separation from service” comes before, after or coincides with his termination of employment). For purposes of clarification, this paragraph shall not cause a forfeiture of any payment or benefits on the part of Executive, but shall only act as a delay until such time as a “separation from service” occurs. |
| c) | Notwithstanding any other provisions of the Agreement to the contrary, if any amount (including imputed income) to be paid to Executive pursuant to the Agreement as a result of Executive’s termination of employment is “deferred compensation” subject to Section 409A, and if Executive is a “specified employee” (as defined under Section 409A) as of the termination date, then, to the extent necessary to avoid the imposition of additional tax or other penalties under Section 409A, the payment of benefits, if any, scheduled to be paid by the Company to Executive hereunder during the first six-month period following the date of employment termination shall not be paid until the date which is the first business day which comes six months and a one day after the date the Executive has incurred a “separation from service” within the meaning of Section 409A. Any deferred compensation payments delayed in accordance with the terms of this Section shall be paid in a lump sum on the first day following such six-month and one day period. |
| d) | With respect to items eligible for reimbursement under the terms of the Agreement, (i) the amount of such expenses eligible for reimbursement in any taxable year shall not affect the expenses eligible for reimbursement in another |
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| taxable year, (ii) no such reimbursement may be exchanged or liquidated for another payment or benefit, and (iii) any reimbursements of such expenses shall be made no later than the end of the calendar year following the calendar in which the related expenses were incurred, except, in each case, to the extent that the right to reimbursement does not provide for a “deferral of compensation” within the meaning of Section 409A. |
| e) | It is intended that each installment of payments and benefits provided under the Agreement shall be treated as a separate identified payment for purposes of Section 409A. Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A. |
| f) | The Company agrees to act in good faith under this Section 3.1 based on the guidance available from the Treasury Department and Internal Revenue Service respecting the proper interpretation of Section 409A, but nothing in this Section 3.1 shall constitute, or be construed as, a covenant by the Company that no payment will be made or benefit will be provided which will be subject to taxation under Section 409A or as a guarantee or indemnity by the Company with respect to the tax consequences to any such payment or benefit. |
3.2 Severability. If it is determined that any of the provisions of this
Agreement, or any part thereof, is invalid or unenforceable, the remainder of the provisions of
this Agreement shall not thereby be affected and shall be given full effect, without regard to the
invalid portions thereof.
3.3 Enforceability; Jurisdictions. Any controversy or claim arising out of or
relating to this Agreement or the breach of this Agreement that is not resolved by Executive and
the Company (or its subsidiaries or affiliates, where applicable) shall be submitted to arbitration
in New York, New York in accordance with New York law and the procedures of the American
Arbitration Association. The determination of the arbitrator(s) shall be conclusive and binding
on. the Company (or its subsidiaries or affiliates, where applicable) and Executive and judgment
may be entered on the arbitrator(s)’ award in any court having jurisdiction. The cost of any
arbitration hereunder shall be borne by the Company.
3.4 Notices. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed, telexed, sent by facsimile
transmission or sent by certified, registered or express mail, postage prepaid. Any such notice
shall be deemed given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, five days after the date of deposit in the United States mails as
follows:
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| (i) | If to the Company, to: | |||
| BioScrip, Inc. | ||||
| 000 Xxxxxxxxxx Xxxx | ||||
| Xxxxxxxx, Xxx Xxxx 00000 | ||||
| Attention: General Counsel | ||||
| with a copy to: | ||||
| Littler Mendelson650 Xxxxxxxxxx Xxxxxx | ||||
| 00xx Xxxxx | ||||
| Xxx Xxxxxxxxx, XX 00000-0000 | ||||
| Attention: Xxxxx X. Xxxxxxxxxxxxx | ||||
| (ii) | If to the Executive, to: | |||
| Xxxxx X. Xxxxxxx, Xx. | ||||
| 0000 Xxxxxxxxxxxxxx Xxxxx | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| with a copy to: | ||||
| Xxxxxxxx & Shohl LLP | ||||
| 000 X. Xxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxxxxxx, Xxxx 00000 | ||||
| Attention: J. Xxxxxxx Xxxxxx, Esq. |
Any such person may by notice given in accordance with this Section 3.4 to the other parties hereto
designate another address or person for receipt by such person of notices hereunder.
3.5 Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements, written or
oral, with respect thereto.
3.6 Waivers and Amendments. This Agreement may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege nor any single or
partial exercise of any such right, power or privilege, preclude any other or further exercise
thereof or the exercise of any other such right, power or privilege.
3.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPALS OF CONFLICTS OF LAW.
3.8 Assignment. This Agreement, and the Executive’s rights and obligations
hereunder, may not be assigned by the Executive; any purported assignment by the Executive in
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violation hereof shall be null and void. In the event of any sale, transfer or other
disposition of all or substantially all of the Company’s assets or business, whether by merger,
consolidation or otherwise, the Company may assign this Agreement and its rights hereunder.
3.9 Withholding. The Company shall be entitled to withhold from any payments or
deemed payments any amount of tax withholding required by law.
3.10 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors, permitted assigns, heirs, executors and
legal representatives.
3.11 Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an original but all
such counterparts together shall constitute one and the same instrument. Each counterpart may
consist of two copies hereof each signed by one of the parties hereto.
3.12 Survival. Anything contained in this Agreement to the contrary not
withstanding, the provisions hereof shall survive any termination of the Executive’s employment
hereunder.
3.13 Headings. The headings in this Agreement are for reference only and shall not
affect the interpretation of this Agreement.
3.14 Supersedes Prior Agreements. Upon execution and delivery of this Agreement,
this Agreement shall supersede in its entirety any and all prior agreements with respect to the
Company’s and the Executive’s respective rights and obligations upon the termination of the
Executive’s employment with the Company.
IN WITNESS WHEREOF, the parties hereto have signed their names as of the day and year first
above written.
| By: | /s/ Xxxxx X. Xxxxxx | /s/ Xxxxx X. Xxxxxxx, Xx. | ||||
| Xxxxx X. Xxxxxx, | Xxxxx X. Xxxxxxx, Xx. | |||||
| Executive Vice President | ||||||
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