EXHIBIT 10.1


 


 


INDEMNIFICATION AGREEMENT


 


THIS INDEMNIFICATION
AGREEMENT (this “Agreement”) is made as of April 3, 2013, by and among BioScrip, Inc., a Delaware
corporation (the “Company”), and Kohlberg Investors V, L.P., a Delaware limited partnership (“Kohlberg”),
Kohlberg Partners V, L.P., a Delaware limited partnership, Kohlberg Offshore Investors V, L.P., a Delaware limited partnership,
Kohlberg TE Investors V, L.P., a Delaware limited partnership, KOCO Investors V, L.P., a Delaware limited partnership, Robert Cucuel,
Mary Jane Graves, Nitin Patel, Joey Ryan, Colleen Lederer, Blackstone Mezzanine Partners II L.P., a Delaware limited partnership,
Blackstone Mezzanine Holdings II L.P., a Delaware limited partnership, and S.A.C. Domestic Capital Funding, Ltd., a Cayman Islands
limited company (collectively, the “Stockholders”), pursuant to that certain stockholders’ agreement dated
as of January 24, 2010 by and among the Company and the Stockholders, as amended as of March 8, 2013, as further amended as of
March 14, 2013 (the “Stockholders’ Agreement”). Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Stockholders’ Agreement.


 


WHEREAS, in accordance
with Section 4.2 of the Stockholders’ Agreement, the Company on March 18, 2013 filed under the Securities Act of 1933, as
amended (the “Securities Act”), a shelf registration statement on Form S-3 (as the same may be amended or supplemented
from time to time, the “Registration Statement”) that includes those Stockholder Shares that the Stockholders
have requested, pursuant to their respective selling stockholder questionnaires provided in accordance with the Company notice
letters to Stockholders dated as of March 8, 2013, to be included for resale registration by the Company (the “Resale
Registration”); and


 


WHEREAS, Section 4.3
of the Stockholders’ Agreement provides that, as a condition to the inclusion of Stockholder Shares in any securities registration
by the Company, including the Resale Registration, the participating Stockholders and the Company shall execute a customary agreement
for such offering containing customary indemnification provisions; and


 


WHEREAS, to induce
the Company to cause the Registration Statement to be declared effective to, among other things, permit public offers and sales
under the Resale Registration, the Stockholders desire to enter into this Agreement.


 


NOW, THEREFORE, in
consideration of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Stockholders do hereby agree as follows:


 


1.                 
INDEMNIFICATION BY THE COMPANY.


 


To the fullest extent
permitted by law, the Company will, and hereby does, indemnify and hold harmless each Stockholder and the directors, officers,
partners, members, managers, agents and employees of each of them, and each person or entity, if any, who controls any Stockholder
(within the meaning of Section 15 of the Securities Act or Section 20 of the


 






    	 



    	 



    

 


Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) (each, a “Stockholder Indemnified Party”), against any losses, claims, damages, liabilities,
costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Claims”)
incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from
the foregoing by or before any court or governmental, administrative or other regulatory agency authority, or body (including the
Securities and Exchange Commission or any state securities commission, authority or self-regulatory organization, in the United
States or anywhere else in the world), whether pending or threatened, whether or not an indemnified party is or may be a party
thereto (“Indemnified Damages”), to which any of them may become subject insofar as such Claims (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise out of or relate to (i) any violation by the Company
of Federal or state securities law, or any other law or regulation relating to the offer or sale of the Stockholder Shares pursuant
to the Registration Statement; (ii) any violation by the Company of Section 4 of the Stockholders’ Agreement; (iii) any untrue
or alleged untrue statement of a material fact contained in the Registration Statement, any Prospectus or any form of prospectus
or in any amendment or supplement thereto or in any preliminary prospectus, or (iv) any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein (in the case of the Registration Statement, any
Prospectus or form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in light of the circumstances
under which they were made) not misleading (the matters in the foregoing clauses (i) through (iv) being, collectively, “Violations”),
except to the extent, but only to the extent, that (1) such untrue statements or omissions included in the Registration Statement,
any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus are based solely
upon information regarding the Stockholder furnished in writing to the Company by the Stockholder expressly for use therein (including
such Stockholder’s proposed method of distribution of Stockholder Shares) or (2) the Claim or Violation relates to the use
by the Stockholder of an outdated or defective Prospectus or supplement thereto after the Company has notified the Stockholder
in writing that the Prospectus or supplement thereto is outdated or defective. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 1 shall not apply to amounts paid in settlement of any Claim
if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld,
conditioned or delayed.


 


2.                 
INDEMNIFICATION BY THE STOCKHOLDERS.


 


To the fullest extent
permitted by law, each Stockholder will, and hereby does, severally and not jointly, indemnify and hold harmless, to the same extent
and in the same manner as is set forth in Section 1, the Company, each of its directors, each of its officers who signs
or has signed the Registration Statement, and each person or entity, if any, who controls the Company (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) (each a “Company Indemnified Party”), against any
Indemnified Damages to which any of them may become subject, under the Securities Act, the Exchange Act or otherwise, insofar as
such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or relate to any Violation,
in each case to the extent, and only to the extent, such Claim or Indemnified Damages relates to (1) untrue statements or omissions
included in the Registration Statement that are based solely upon information regarding the Stockholder furnished in writing


 






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to the Company by the
Stockholder expressly for use therein (including such Stockholder’s proposed method of distribution of Stockholder Shares)
or (2) the use by the Stockholder of an outdated or defective Prospectus after the Company has notified the Stockholder in writing
that the Prospectus is outdated or defective. Notwithstanding anything to the contrary contained herein, the indemnification agreement
contained in this Section 2 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of such Stockholder, which consent shall not be unreasonably withheld, conditioned or delayed. The aggregate
liability of any Stockholder pursuant to this Section 2 shall not exceed the net proceeds to such Stockholder as a result
of the sale of Stockholder Shares pursuant to the Resale Registration. For the avoidance of doubt and notwithstanding anything
to the contrary herein, in no event shall any Stockholder be liable for indemnification to any Company Indemnified Party or any
other Stockholder Indemnified Party hereunder for any other Stockholder’s acts or omissions as a result of the sale of such
other Stockholder’s Shares.


 


3.                 
INDEMNIFICATION PROCEDURES.


 


Promptly after receipt
by a Stockholder Indemnified Party under Section 1 or a Company Indemnified Party under Section 2 (as the case may
be, each, an “Indemnified Party”) of written notice of the commencement of any action or proceeding (including
any governmental action or proceeding) involving a Claim in respect thereof an indemnification claim to be made against any indemnifying
party under Section 1 or Section 2 (as the case may be, each, an “Indemnifying Party”), such Indemnified
Party shall deliver to such Indemnifying Party a written notice of the commencement thereof. The Indemnifying Party shall have
the right to participate in, and, to the extent the Indemnifying Party by written notice to the Indemnified Party within thirty
(30) days of the receipt of the indemnification notice so desires, jointly with any other Indemnifying Party similarly noticed,
to assume control of the defense thereof with counsel mutually satisfactory to the Indemnifying Party and the Indemnified Party.
In any such proceeding, any Indemnified Party may retain its own counsel, but, except as provided in the following sentence, the
fees and expenses of that counsel will be at the expense of that Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of that counsel, (ii) the Indemnifying Party does not assume the defense of such
proceeding in such 30 day period or (iii) in the reasonable opinion of counsel retained by the Indemnified Party, the representation
by such counsel for the Indemnified Party and the Indemnifying Party would be inappropriate due to actual or potential differing
interests between such Indemnified Party and any other party represented by such counsel in such proceeding. In the event the Company
is the Indemnifying Party, the Company shall pay reasonable fees for up to one separate legal counsel (plus local counsel) for
the Stockholders, and such legal counsel shall be selected by the Stockholders holding at least a majority in interest of the Stockholder
Shares included in the Registration Statement to which the Claim relates. The Indemnifying Party shall keep the Indemnified Party
fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No Indemnifying
Party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided,
however, that the Indemnifying Party shall not unreasonably withhold, delay or condition its consent. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, consent to entry of any judgment or enter into any settlement
or other compromise with respect to any pending or threatened action or claim in respect of which indemnification or contribution
may be or has been sought hereunder (whether or not the Indemnified Party is an actual or potential party


 






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to such action or claim)
which does not (i) include as an unconditional and irrevocable term thereof the giving by the claimant or plaintiff to such Indemnified
Party of a full release from all liability in respect to such Claim or (ii) solely involve the payment of money (for which the
Indemnified Party is entitled to full reimbursement from the Indemnifying Party in connection therewith). Following indemnification
as provided for hereunder, the Indemnifying Party shall be subrogated to all rights of the Indemnified Party with respect to all
third parties, firms or corporations relating to the matter for which indemnification has been made, but only to the extent of
any indemnification payment so made. The failure to deliver written notice to the Indemnifying Party within a reasonable time of
the commencement of any such action shall not relieve the Indemnifying Party of any liability to the Indemnified Party under Section
1 or Section 2, as the case may be, except to the extent that the Indemnifying Party is prejudiced in its ability to
defend such action, and shall not relieve the Indemnifying Party of any liability otherwise than under Section 1 or Section
2, as the case may be. The indemnification required by Section 1 or Section 2, as the case may, be shall be made
by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or
Indemnified Damages are incurred. The indemnity agreements contained herein shall be in addition to (i) any cause of action or
similar right of the Indemnified Party against the Indemnifying Party or others, and (ii) any liability to which the Indemnifying
Party may be subject pursuant to the law.


 


4.                 
CONTRIBUTION.


 


To the extent any indemnification
by an Indemnifying Party is prohibited or limited by law, the Indemnifying Party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 1 or Section 2, as the case may be, to the fullest
extent permitted by law; provided, however, that: (i) no person or entity involved in the sale of Stockholder Shares
who is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with
such sale, shall be entitled to contribution from any person or entity involved in such sale of Stockholder Shares who was not
guilty of fraudulent misrepresentation; and (ii) contribution by any Stockholder shall be limited to an amount equal to the net
amount of proceeds received by such Stockholder from the sale of such Stockholder Shares pursuant to the Registration Statement
giving rise to such action or claim for indemnification less the amount of any damages that such Stockholder has otherwise been
required to pay in connection with such sale.


 


5.                 
MISCELLANEOUS.


 


a.                  
Any notice, consent, waiver or other communication required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been duly given: (i) upon receipt, when delivered personally; (ii) upon receipt, when
sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending
party); or (iii) one business day after deposit with a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:


 






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If to the Company:


 


100 Clearbrook Road


Elmsford, NY 10523


Attention: General Counsel


Facsimile: (914) 345-8122


E-mail: Kimberlee.Seah@Bioscrip.com


 


With a copy to:


Polsinelli Shughart PC


161 N. Clark Street, Suite 4200


Chicago, IL 60601


Attention: Donald E. Figliulo


Facsimile: (312) 893-2164


E-mail: dfigliulo@polsinelli.com


 


If to the Stockholders, at their
respective addresses set forth on Schedule I attached hereto.


 


Written confirmation
of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by a courier or overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or deposit with a nationally recognized overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.


 


b.                 
Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising
such right or remedy, shall not operate as a waiver thereof.


 


c.                  
All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each
party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof by registered or certified mail, return receipt requested, or by deposit with a nationally recognized
overnight delivery service, to such party at the address for such notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law.


 






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If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of
this Agreement in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.


 


d.                 
This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein.
This Agreement supersedes all prior agreements and understandings among the parties hereto with respect to the subject matter hereof
and thereof.


 


e.                  
The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning
hereof.


 


f.                  
This Agreement and any amendments hereto may be executed and delivered in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken
together shall constitute one and the same agreement, and shall become effective when counterparts have been signed by each party
hereto and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. In the
event that any signature to this Agreement or any amendment hereto is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature
page were an original thereof.


 


g.                 
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent
and no rules of strict construction will be applied against any party.


 


h.                 
The obligations of each Stockholder hereunder are several and not joint with the obligations of any other Stockholder, and
no provision of this Agreement is intended to confer any obligations on any Stockholder vis-à-vis any other Stockholder.
Nothing contained herein, and no action taken by any Stockholder pursuant hereto, shall be deemed to constitute the Stockholders
as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Stockholders are
in any way acting in concert or as a group with respect to such obligations or the transactions contemplated herein.


 


* * * * * *


 




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IN WITNESS WHEREOF,
the parties have caused this Indemnification Agreement to be duly executed as of the day and year first above written.


 


COMPANY:


 


BIOSCRIP, INC.


 


By:/s/ Kimberlee C. Seah


Name:Kimberlee C. Seah


Title: Senior Vice President, Secretary and General Counsel


 


 


STOCKHOLDERS:


 


KOHLBERG INVESTORS V, L.P.


 


By: Kohlberg Management V, L.L.C., its general partner


 


By:/s/ Gordon Woodward


Name:Gordon Woodward


Title:Vice President


 


 


KOHLBERG PARTNERS V, L.P.


 


By: Kohlberg Management V, L.L.C., its general partner


 


By:/s/ Gordon Woodward


Name:Gordon Woodward


Title:Vice President


 


 


KOHLBERG OFFSHORE INVESTORS V, L.P.


 


By: Kohlberg Management V, L.L.C., its general partner


 


By:/s/ Gordon Woodward


Name:Gordon Woodward


Title:Vice President


 






    	 



    	 



    

 


KOHLBERG TE INVESTORS V, L.P.


 


By: Kohlberg Management V, L.L.C., its general partner


 


By:/s/ Gordon Woodward


Name:Gordon Woodward


Title:Vice President


 


 


KOCO INVESTORS V, L.P.


 


By: Kohlberg Management V, L.L.C., its general partner


 


By:/s/ Gordon Woodward


Name:Gordon Woodward


Title:Vice President





 


 


ROBERT CUCUEL


 


/s/ Robert A. Cucuel, Jr.


 


 


MARY JANE GRAVES


 


/s/ Mary Jane Graves


 


 


NITIN PATEL


 


/s/ Nitin Patel


 


 


JOEY RYAN


 


/s/ Joey Ryan


 


 


COLLEEN LEDERER


 


/s/ Colleen Lederer


 


 



    	 



    	 



    




 


BLACKSTONE MEZZANINE PARTNERS II L.P.


 


By: Blackstone Mezzanine Associates II, L.P., its general partner


 


By: Blackstone Mezzanine Management Associates II, L.L.C., its
general partner


 


By: /s/ Marisa
J. Beeney







Name:Marisa J. Beeney







Title:Authorized Signatory







 


 


BLACKSTONE MEZZANINE HOLDINGS II L.P.


 


By: Blackstone Mezzanine Associates II, L.P., its general partner


 


By: Blackstone Mezzanine Management Associates II, L.L.C., its
general partner


 





By:/s/ Marisa J. Beeney


Name:Marisa J. Beeney


Title:Authorized Signatory


 


S.A.C. DOMESTIC CAPITAL FUNDING,
LTD.


 


By:/s/ Peter A. Nussbaum







Name:Peter A. Nussbaum







Title:Authorized Signatory







 






    	 



    	 



    




 





SCHEDULE I