FORM 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 30, 2008
BioScrip, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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0-28740
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05-0489664 |
(State or Other Jurisdiction of
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(Commission
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(IRS Employer |
Incorporation)
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File Number)
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Identification No.) |
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100 Clearbrook Road, Elmsford, New York
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10523 |
(Address of Principal Executive Offices)
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(Zip Code) |
Registrants
telephone number, including area code
(914) 460-1600
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12). |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240-14d-2(b)). |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)). |
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of
Principal Officers; Compensatory Arrangements of Certain Officers
On May 30, 2008, BioScrip, Inc. (the Company) entered into a new Employment Agreement (the
Employment Agreement) with Richard H. Friedman, the Companys Chairman and CEO. Mr. Friedmans
previous employment agreement with the Company was set to expire by its terms on May 31, 2008.
Pursuant to the terms of the Employment Agreement, the Company agreed to employ Mr. Friedman as the
Companys Chief Executive Officer, President and Chairman for the period commencing June 1, 2008
and continuing through and including May 31, 2011; provided that the agreement shall be extended
for up to four additional one year periods unless either party provides written notice of
termination to the other not less than ninety days prior to the expiration of the then current
term. During the term of the Employment Agreement Mr. Friedman will be paid a base salary of
$850,000.00 per annum. In addition, Mr. Friedman is eligible (i) to participate in the Companys
benefit programs, (ii) to receive a bonus each calendar year under the Companys then applicable
short- and long-term bonus or other incentive plans (with a maximum target payment equal to 100% of
his annual salary) upon the achievement of pre-established performance goals; and (iii) to
participate in the Companys long term incentive equity plans and programs in a manner commensurate
with his offices and positions. As a signing bonus, Mr. Friedman received a one-time special
performance share award of 200,000 shares of restricted common stock, subject to the achievement of
certain performance and time measures as set forth in the Employment Agreement (the Special Equity
Award).
If Mr. Friedmans employment is terminated early due to his death: (i) he is entitled to
receive his salary and other benefits earned and prior to the date of termination and reimbursement
for expenses incurred prior to the date of termination, (ii) with the exception of the Special
Equity Award, all unvested options and restricted stock shall immediately vest and (together with
all fully vested and exercisable options held by him) may be exercisable by his estate for the
earlier to occur of one year following his date of death or the original expiration date of the
option, (iii) his estate shall be entitled to receive a pro rata bonus for the year in which such
death occurred, (iv) any and all deferred compensation shall be paid to Mr. Friedmans estate, and
(v) the Special Equity Award shall vest on a pro rata basis, subject to achievement of the agreed
upon performance criteria.
If Mr. Friedmans employment is terminated early due to his disability (as defined in the
Employment Agreement): (i) he is entitled to receive his salary and other benefits earned and
accrued prior to the date of termination and reimbursement for expenses incurred prior to the date
of termination, (ii) he shall be entitled to receive a pro rata bonus for the year in which
termination occurred, (iii) with the exception of the Special Equity Award, all unvested options
and restricted stock shall immediately vest and (together with all fully vested and exercisable
options held by him) may be exercisable by him for the earlier to occur of one year following his
date of death or the original expiration date of the option, (iv) he shall receive for a period of
two years following termination, his annual salary at the time of termination (less any proceeds
received by him on account of Social Security payments or similar benefits and the proceeds of any
Company provided long-term disability insurance), continuing coverage under all benefit plans and
programs to which he was previously entitled, (v) he shall become vested in and paid 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 (the
Code), and (vi) the Special Equity Award shall vest on a pro rata basis, subject to achievement
of the agreed upon performance criteria.
If the Company terminates Mr. Friedman for Cause (as defined in the Employment Agreement):
(i) he shall be entitled to receive his salary and other benefits earned and accrued prior to the
date of termination and reimbursement for expenses incurred prior to the date of termination, (ii)
all vested and unvested stock options shall lapse and terminate immediately, (iii) all unvested
restricted stock
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shall be forfeited, and (iv) all earned and unearned performance shares (including performance
shares granted as part of the Special Equity Award) shall lapse and terminate immediately.
If Mr. Friedman terminates his employment during the term and it is other than as a result of
his death or disability or without Good Reason (as defined in the Employment Agreement): (i) he
shall be entitled to receive his salary and other benefits earned and accrued prior to the date of
termination and reimbursement of expenses incurred prior to the date of termination, (ii) all fully
vested and exercisable stock options may be exercised by him for the earlier to occur of one year
following his date of termination or the original expiration date of the option, (iii) all unvested
restricted stock shall be forfeited, and (iv) all unearned performance shares (including
performance shares granted as part of the Special Equity Award) shall lapse and terminate
immediately.
If the Company terminates Mr. Friedmans employment without Cause: (i) he shall be entitled to
receive his salary and other benefits earned and accrued prior to the date of termination and
reimbursement of expenses incurred prior to the date of termination, (ii) he shall be entitled to
receive a pro rata bonus for the year in which termination occurred, (iii) all unvested options and
restricted stock shall immediately vest and (together with any other vested and exercisable options
then held by Mr. Friedman) may be exercised by him for the earlier to occur of one year following
his date of termination or the original expiration date of the option, (iv) he will be entitled to
receive for a period of two years following termination his annual salary at the time of
termination and continuing coverage under all benefit plans and programs to which he was previously
entitled, (v) he shall become vested in and immediately paid 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 Code, and (vi) the Special Equity Award shall vest on a pro
rata basis, subject to achievement of the agreed upon performance criteria.
If Mr. Friedman terminates his employment for Good Reason: (i) he shall be entitled to receive
his salary and other benefits earned and accrued prior to the date of termination and reimbursement
of expenses incurred prior to the date of termination, (ii) he shall be entitled to receive a pro
rata bonus for the year in which termination occurred, (iii) all unvested options and restricted
stock shall immediately vest and (together with any other vested and exercisable options then held
by Mr. Friedman) may be exercised by him for the earlier to occur of one year following his date of
termination or the original expiration date of the option, (iv) he will be entitled to receive for
a period of two years following termination his annual salary at the time of termination and
continuing coverage under all benefit plans and programs to which he was previously entitled, (v)
he shall become vested in and immediately paid 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 Code, and (vi) the Special Equity Award shall vest on a pro rata basis, subject to
achievement of the agreed upon performance criteria.
If within one year following a Change of Control (as defined in the Employment Agreement)
Mr. Friedman is terminated by the Company or any successor, or within such one year period he
elects to terminate his employment for Good Reason: (i) he shall be entitled to receive his salary
and other benefits earned and accrued through the date of termination, (ii) he shall be entitled to
receive a pro rata bonus for the year in which termination occurred, (iii) all unvested options
shall fully vest and (together with any other vested options then held by Mr. Friedman) may be
exercised for one year following termination, and (iv) all unvested shares of restricted stock
shall fully vest. In addition, Mr. Friedman will be entitled to receive, for the longer of three
years following termination or the period remaining in his term of employment under his employment
agreement, his annual salary at the time of termination, continuing coverage under all benefits
plans and programs to which he was previously entitled and to the extent possible, his
beneficiaries and/or estate shall become vested in any pension or other deferred
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compensation other than pension or deferred compensation under a plan intended to be qualified
under Section 401(a) or 403(a) of the Code.
If either party elects not to renew the Employment Agreement at the end of the initial or any
renewal term thereof, then Mr. Friedman shall be entitled to receive a retirement payment in the
amount of $1,700,000.00 (the equivalent of two years salary), which shall increase by 25% for each
year (or part thereof) that Mr. Friedman remains employed with the Company following the initial
three year term of the Employment Agreement. In addition, if Mr. Friedmans employment with the
Company is terminated without Cause or he terminates his employment for Good Reason, then he is
entitled to receive, in addition to any other amounts provided for as a result of such termination,
an amount equal to the incremental retirement benefit for each year (or portion thereof he remains
employed after the initial three year term). The retirement benefit shall be paid to Mr. Friedman
in equal monthly installments over a five year period beginning on the first day of the month
following his termination. In the event of his death prior to payment in full of the retirement
benefit, the remainder shall be paid to a beneficiary designated by Mr. Friedman, or if no
beneficiary is named to his estate.
Mr. Friedman may not directly or indirectly (other than with the Company) participate in the
United States in any business competitive with the business of the Company during the term of
employment and for one year following the later of his termination or his receipt of severance
payments. Similarly, during the term and for a period of two years following termination, Mr.
Friedman may not solicit or otherwise interfere with the Companys relationship with any present or
former Company employee or customer. Mr. Friedman has also agreed to keep confidential during the
term of employment and thereafter all information concerning the Company and its business.
The foregoing summary is qualified in its entirety by reference to the complete text of the
Employment Agreement, a copy of which is filed with this report as Exhibit 10.1.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits. The following are furnished as exhibits to this Current Report:
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Exhibit No. |
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Description of Exhibit |
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10.1
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Employment Agreement, dated May 30, 2008, between BioScrip, Inc. and Richard H. Friedman. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned duly authorized.
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BIOSCRIP, INC.
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Date: June 3, 2008 |
By: |
/s/ David L. Frankel
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David L. Frankel, |
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Assistant Secretary and Assistant General Counsel |
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