EXHIBIT 10.1




 


AMENDMENT NO. 4 AND WAIVER TO STOCKHOLDERS’
AGREEMENT


 


THIS AMENDMENT NO.
4 AND WAIVER, dated as of March 26, 2014 (“Amendment and Waiver”), amends and waives certain provisions of
the Stockholders’ Agreement, dated as of January 24, 2010, as amended on March 8, 2013 and further amended on March 14,
2013 and August 13, 2013 (the “Stockholders’ Agreement”), among BioScrip, Inc., a Delaware corporation
(the “Company”), 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”). 


 


WHEREAS, pursuant to
Section 7.8 of the Stockholders’ Agreement, the Company and the Majority Stockholders desire to further amend Section 1.1
of the Stockholders’ Agreement and further waive, to the extent specified in Section 3 hereof, Section 1.4 of the Stockholders’
Agreement.


 


WHEREAS, Kohlberg holds
at least a majority of the Stockholder Shares.


 


NOW, THEREFORE, in
consideration of the covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:


 


1.Defined Terms.
Unless otherwise specifically defined herein, all capitalized terms used herein shall have the respective meanings ascribed to
such terms in the Stockholders’ Agreement.


 


2.Amendment
to Section 1.1 of the Stockholders’ Agreement. Effective as of the date hereof, the last sentence of Section 1.1 of the
Stockholders’ Agreement is amended and restated in its entirety to read as follows:


 


“The number
of directors on the Board of Directors shall be no fewer than five and no more than ten as may be determined by the Board of Directors
from time to time.”


 


3.Waiver of
Section 1.4 of the Stockholders’ Agreement. Notwithstanding that Kohlberg has ceased to have the right to designate one
or more directors in accordance with Section 1.1 of the Stockholders’ Agreement, the parties hereto waive the following provisions
of Section 1.4 of the Stockholders’ Agreement: (a) Kohlberg’s obligation to use commercially reasonable efforts to
cause the removal or the resignation of the Stockholders’ Nominees, and (b) the obligation of the remaining directors to
decrease the size of the Board by two vacancies; provided, however, such waivers shall remain in effect, and the Stockholders’
Nominees shall remain in office, only until the earliest of (i) the completion of the Company’s 2015 annual meeting of stockholders,
(ii) the date that the Board, in its sole discretion, requests the resignation of the Stockholders’ Nominees and the Stockholders’
Nominees submit their resignations in accordance therewith; or (iii) the death, disability, retirement, resignation or removal
of such Stockholders’ Nominee. For the avoidance of doubt, this waiver of Section 1.4 of the Stockholders’ Agreement
does not amend, waive or extend the rights of Kohlberg or the Stockholders’ Nominees under Section 1.1 or Section 1.6 of
the Stockholders’ Agreement.


 


4.Counterparts.
This Amendment and Waiver may be executed in counterparts (and by different parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Amendment and Waiver by facsimile, PDF or other electronic transmission shall be effective
as delivery of a manually executed counterpart of this Amendment and Waiver.


 






    	 



    	 



    

 


5.Governing
Law. THIS AMENDMENT AND WAIVER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.


 


6.Except for the
amendment set forth in Section 2 hereof and the waiver set forth in Section 3 hereof, the provisions of the Stockholders’
Agreement remain in full force and effect in accordance with their terms.


 


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IN WITNESS WHEREOF, the parties hereto
have caused this Amendment and Waiver to be duly executed by their respective officers thereunto duly authorized as of the day
and year first above written.


 


 





	 	BIOSCRIP, INC.
	 	 	 	 
	 	By:	  /s/ Kimberlee
    C. Seah
	 	 	Name:  	Kimberlee C. Seah
	 	 	Title:	Senior Vice President, Secretary and
	 	 	 	General Counsel
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	MAJORITY STOCKHOLDER:
	 	 	 	 
	 	 	 	 
	 	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