NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit 99.5
NON-QUALIFIED STOCK OPTION AGREEMENT made as of the day of 20 (the “Grant
Date”), between BioScrip, Inc., a Delaware corporation (the “Company”), and (the
“Awardee”).
WHEREAS the Company desires to afford the Awardee an opportunity to purchase shares of common
stock, $.0001 par value per share, of the Company (“Common Stock”) as hereinafter provided, in
accordance with the provisions of the Company’s 2001 Incentive Stock Plan (as amended and restated
as of the date hereof, the “Plan”), a copy of which has been provided to Awardee.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other
good and valuable consideration the legal sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound hereunder, agree as follows:
1. Grant of Option. The Company hereby grants to the Awardee the right and option
(the “Option”) to purchase all or any part of an aggregate
of ___ shares of Common Stock (the
“Shares”). The Option is in all respects limited and conditioned as hereinafter provided, and is
subject to the terms and conditions of the Plan now in effect and as they may be amended from time
to time, in accordance with the Plan (which terms and conditions are and automatically shall be
incorporated herein by reference and made a part hereof and shall control in the event of any
conflict with any other terms of this Option Agreement). It is intended that the Option granted
hereunder be a non-qualified stock option (“NQSO”) and not an incentive stock option
(“ISO”) as such term is defined in Section 422 of the Internal Revenue Code of 1986, as amended
(the “Code”).
2. Purchase Price. The purchase price per share of the Shares under the Option shall
be $ .
3. Term. Unless earlier terminated pursuant to any provision of the Plan or of this
Option Agreement, this Option shall expire on , 20 (the “Expiration Date”). This
Option shall not be exercisable on or after the Expiration Date.
4. Exercise of Option. This Option may be exercised as to one-third of the Shares
(rounded to the nearest whole share) on each of the first three yearly anniversaries of the date
hereof so that the Option shall be exercisable as to all Shares on the third such anniversary.
Options that become exercisable in accordance with the foregoing shall remain exercisable, subject
to the provisions contained in the Plan and in this Option Agreement (including without limitation
Paragraph 8 below), until the expiration of the term of this Option as set forth in Paragraph 3 or
until other termination of the Option.
5. Method of Exercising Option. Subject to the terms and conditions of this Option
Agreement and the Plan, the Option may be exercised upon written notice to the Company or the
securities broker then designated by the Company, the form of such notice shall be provided by the
Company upon request. Such notice shall state the election to exercise the Option and the number of
shares with respect to which it is being exercised; shall be signed by the person or persons so
exercising the Option; shall, if the Company so requests, be accompanied by the investment
certificate referred to in Paragraph 6 hereof and shall be accompanied by payment of the full
Option price of such shares.
The Option price shall be paid to the Company:
(a) In cash, or in its equivalent;
(b) In Company Common Stock previously acquired by the Awardee, provided that if such shares
of Common Stock were acquired through exercise of an ISO or NQSO or of an option under a similar
plan, such shares have been held by the Awardee for a period of more than 12 months on the date of
exercise;
(c) In Company Common Stock newly acquired by the Optionee upon exercise of the Option; or
(d) In any combination of (a), (b) and (c) above.
In the event such Option price is paid, in whole or in part, with shares of Common Stock, the
portion of the Option price so paid shall be equal to the “fair market value” on the date of
exercise of the Option, as such “fair market value” is determined in Section 5(a) of the Plan, of
the Common Stock surrendered in payment of such Option price.
Upon receipt of such notice and payment, the Company, as promptly as practicable, shall
deliver or cause to be delivered a certificate or certificates representing the shares with respect
to which the Option is so exercised. The certificate or certificates for the shares as to which
the Option shall have been so exercised shall be registered in the name of the person or persons so
exercising the Option (or, if the Option shall be exercised by the Awardee and if the Awardee shall
so request in the notice exercising the Option, shall be registered in the name of the Awardee and
the Awardee’s spouse, jointly, with right of survivorship) and shall be delivered as provided above
to or upon the written order of the person or persons exercising the Option. In the event the
Option shall be exercised by any person or persons after the legal disability or death of the
Awardee, such notice shall be accompanied by appropriate proof of the right of such person or
persons to exercise the Option. All shares that shall be purchased upon the exercise of the Option
as provided herein shall be fully paid and non-assessable by the Company.
The foregoing provisions of this Section 5 to the contrary notwithstanding, this Option may be
exercised in such other manner consistent with the Plan and applicable law as from time to time may
be authorized in writing by the Company with respect to such “cashless” option exercise
arrangements as the Company from time to time may maintain with securities brokers. Any such
arrangements and written authorizations may be terminated at any time by the Company without
notice to the Awardee.
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6. Shares to be Purchased for Investment. Unless the Company has theretofore
notified the Awardee that a registration statement covering the shares to be acquired upon the
exercise of the Option has become effective under the Securities Act of 1933 and the Company has
not thereafter notified the Awardee that such registration is no longer effective, or unless
counsel to the Company shall be otherwise satisfied that the Awardee would be permitted under
applicable law to immediately resell shares acquired upon the exercise of the Option, it shall be a
condition to any exercise of this Option that the shares acquired upon such exercise be acquired
for investment and not with a view to distribution, and the person effecting such exercise shall
submit to the Company a certificate of such investment intent, together with such other evidence
supporting the same as the Company may request. The Company shall be entitled to restrict the
transferability of the shares issued upon any such exercise to the extent necessary to avoid a risk
of violation of the Securities Act of 1933 (or of any rules or regulations promulgated thereunder)
or of any state laws or regulations. Such restrictions may, at the option of the Company, be noted
or set forth in full on the share certificates.
7. Non-Transferability of Option. This Option is not assignable or transferable, in
whole or in part, by the Awardee otherwise than by the laws of descent and distribution, and during
the lifetime of the Awardee the Option shall be exercisable only by the Awardee or by his guardian
or legal representative.
8. Termination of Employment. If the Awardee’s Employment with the Company and all
Affiliates, as defined in the Plan, is terminated for any reason (including death or disability)
prior to the Expiration Date of this Option as set forth in Paragraph 3, this Option may be
exercised, to the extent of the number of shares with respect to which the Awardee could have
exercised it on the date of such termination of Employment, or to any greater extent permitted by
the Committee, by the Awardee (or, in case of Awardee’s disability, by the Awardee’s legal
representative or, in case of Awardee’s death, by the Awardee’s estate, personal representative or
beneficiary who acquired the right to exercise this Option by bequest or inheritance or by reason
of Awardee’s death) at any time prior to thirty days following the date of termination of
employment.
9. Withholding of Taxes. The obligation of the Company to deliver shares of Common
Stock upon the exercise of the Option shall be subject to applicable federal, state and local tax
withholding requirements.
If the exercise of this Option is subject to the withholding requirements of applicable
federal tax laws, the Committee may permit the Awardee, subject to the provisions of the Plan and
such additional withholding rules (the “Withholding Rules”) as shall be adopted by the Committee,
to satisfy the minimum federal, state and local withholding tax, in whole or in part, by electing
to have the Company withhold (or by returning to the Company) shares of Common Stock, which shares
shall be valued, for this purpose, at their fair market value on the date of exercise of the Option
(or, if later, the date on which the Optionee recognizes ordinary income with respect to such
exercise) (the “Determination Date”). An election to use shares of Common
Stock to satisfy tax withholding requirements must be made in compliance with and subject to
the Withholding Rules, and the Committee may not withhold shares in excess of the number necessary
to satisfy the minimum federal, state and local income tax withholding requirements. In the event
shares of Common Stock acquired under the exercise of an ISO are used to satisfy such withholding
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requirement, such shares of Common Stock must have been held by the Awardee for a period of not
less than the holding period described in section 422(a)(1) of the Code on the Determination Date,
or if such shares of Common Stock were acquired through exercise of an NQSO or of an option under a
similar plan, such option was granted to the Awardee at least six months prior to the Determination
Date.
10. Governing Law. This Option Agreement shall be construed in accordance with, and
its interpretation shall be governed by applicable federal law, and otherwise by the laws of the
State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Non-Qualified Stock Option Agreement to be
duly executed by its officers thereunto duly authorized, and the Awardee has hereunto set his hand
and seal, all on the day and year first above written.
| BIOSCRIP, INC. |
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| By: | ||||
| Xxxxx X. Xxxxxx, Executive Vice President | ||||
ACCEPTED AND AGREED TO:
, Awardee
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