Exhibit 10.1


 





FIRST AMENDMENT TO AMENDED AND RESTATED


EMPLOYMENT AGREEMENT


 


THIS FIRST AMENDMENT (the “First Amendment”)
to the AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement"), originally made as of December 23, 2010, and amended
and restated on November 25, 2013, between Richard M. Smith ("Executive"), and BioScrip, Inc. ("Company"),
is hereby made on this 9th day of September, 2016 by and between the parties identified herein and shall be effective
upon the closing of the transaction contemplated below (the “Effective Date”).


 


WHEREAS, the Company has employed
Executive, pursuant to the Agreement, as its President and Chief Executive Officer, and Executive serves on the Company’s
Board of Directors; and


 


WHEREAS, Executive is President and
Chief Executive Officer, and serves on the Board, of the Company subsidiaries identified in this First Amendment; and


 


WHEREAS, the Company and Home Solutions,
Inc. have entered into a transaction whereby the Company is acquiring HS Infusion Holdings, Inc., which transaction is scheduled
to close on or about September 9, 2016 (the “Closing”); and


 


WHEREAS, upon the Closing, Executive
shall relinquish his title as Chief Executive Officer and President of the Company, in consideration for this First Amendment;
and


 


WHEREAS, it is anticipated that,
effective December 1, 2016, Executive shall assume the title of Vice Chair of the Company’s Board of Directors; and


 


WHEREAS, Executive shall remain employed
at the Company pursuant to the Agreement, until November 30, 2016; and


 


WHEREAS the parties have agreed that
it is mutually beneficial to Executive and the Company for Executive to relinquish his title as Chief Executive Officer and President
of the Company, and of each subsidiary, on the Effective Date.


 


NOW, THEREFORE, in consideration
of the foregoing and the covenants in this First Amendment, the parties agree as follows:


 


1.      Position and Duties. Section 1(a) of the Agreement is amended to provide that, upon the Closing, Executive shall
relinquish the titles of President and Chief Executive Officer of the Company. It is anticipated that Executive will assume the
title of Vice Chair of the Board of Directors of the Company effective December 1, 2016. In connection therewith, and in consideration
of this First Amendment, Executive shall forbear from asserting that such title change constitutes Good Reason for the termination
of employment pursuant to Section 4(f).


 


2.      Service for Company Subsidiaries. Upon the Closing, Executive shall resign as President and Chief Executive Officer
of the following subsidiaries of the Company, as well as resign as a member of the Board of Directors of each such subsidiary:
Applied Health Care, LLC, BioScrip Infusion Management, LLC, BioScrip Infusion Services, Inc., BioScrip Infusion 



 



 






    1


     


    



Services, LLC,
BioScrip Medical Supply Services, LLC, BioScrip Nursing Services, LLC, BioScrip PBM Services, LLC, BioScrip Pharmacy (NY), Inc.,
BioScrip Pharmacy (Puerto Rico), Inc., BioScrip Pharmacy Services, Inc., BioScrip Pharmacy, Inc., Bradhurst Specialty Pharmacy,
Inc., Chronimed, LLC, CHS Holdings, Inc., Critical Homecare Solutions, Inc., Deaconess Enterprises, LLC, Deaconess HomeCare, LLC,
East Goshen Pharmacy, Inc., HomeChoice Partners, Inc., InfuCenters, LLC, Infusal Partners, InfuScience HHA, LLC, InfuScience, Inc.,
InfuScience South Carolina, LLC, InfuScience Subs, Inc., Infusion Partners of Brunswick, LLC, Infusion Partners of Melbourne, LLC,
Infusion Partners, LLC, Infusion Solutions, Inc., Infusion Therapy Specialists, Inc., Knoxville Home Therapies, LLC, National Health
Infusion, Inc., Natural Living, Inc., New England Home Therapies, Inc., Option Health, Ltd., Professional Home Care Services, Inc.,
Regional Ambulatory Diagnostics, Inc., Scott-Wilson, Inc., Specialty Pharma, Inc., and Wilcox Medical, Inc. (collectively, the
“Subsidiaries”). The Subsidiaries shall be made a party to this First Amendment and the Agreement, including the rights
and obligations set forth in the Agreement.


 


3.      Term. The following language shall be added at the end of Section 2: In accordance with the foregoing, the Company
has notified Executive that, upon the Closing, the Company does not intend to renew or extend the Agreement. Executive’s
Termination Date, and the date upon which he shall separate from the Company’s service shall be November 30, 2016 due to
nonrenewal of the Agreement. During the period between the Closing and the Termination Date, Executive shall be relieved of his
regular duties and perform only such transition services as the Company and its new Chief Executive Officer request (the “Transition
Period”). During the Transition Period, Executive shall continue to receive his regular Base Salary, and remain eligible
for all Company benefits. Executive shall be eligible for all post-termination payments and benefits (and, if applicable, his estate
and assigns) pursuant to Section 5(c) of the Agreement. For the avoidance of doubt, Company retains the right to terminate Executive
for Cause before the Termination Date in accordance with Section 4(c) of the Agreement.


 


4.      Board Service Following Termination Date. Following the Termination Date, Executive shall be paid such director compensation
as is paid to other non-employee directors for as long as he continues to serve as a member of the Company’s Board of Directors.
Executive shall be entitled to keep his laptop computer and cellular phone provided by the Company for as long as Executive continues
to serve on the Company's Board, and shall return these items to the Company upon his termination of service as a member of the
Board.


 


5.      This Amendment is consistent with Section 18 of the Agreement. All other provisions of the Agreement shall remain in full
force and effect.





 


The parties
hereto have executed this Amendment on this 9th day of September, 2016.


 





	RICHARD M. SMITH	 	BIOSCRIP, INC.
	 	 	 
	 	 	 
	/s/ Richard M. Smith	 	By:	/s/ Kathryn Stalmack
		 	 	Name:	Kathryn Stalmack
		 	 	Title:	Senior Vice President, General Counsel and Secretary











  






    2


     


    




 





	Applied Health Care, LLC	 	BioScrip Infusion Management, LLC
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	BioScrip Infusion Services, Inc.	 	BioScrip Infusion Services, LLC
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	BioScrip Medical Supply Services, LLC	 	BioScrip Nursing Services, LLC
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	BioScrip PBM Services, LLC	 	BioScrip Pharmacy (NY), Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	BioScrip Pharmacy (Puerto Rico), Inc.	 	BioScrip Pharmacy Services, Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary



 



    3


     


    

 





	BioScrip Pharmacy, Inc.	 	Bradhurst Specialty Pharmacy, Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	Chronimed, LLC	 	CHS Holdings, Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	Critical Homecare Solutions, Inc.	 	Deaconess Enterprises, LLC
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	Deaconess HomeCare, LLC	 	East Goshen Pharmacy, Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	HomeChoice Partners, Inc.	 	InfuCenters, LLC
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary



 



    4


     


    

 





	Infusal Partners	 	InfuScience HHA, LLC
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	InfuScience, Inc.	 	InfuScience South Carolina, LLC
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	InfuScience Subs, Inc.	 	Infusion Partners of Brunswick, LLC
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	Infusion Partners of Melbourne, LLC	 	Infusion Partners, LLC
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	Infusion Solutions, Inc.	 	Infusion Therapy Specialists, Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary



 



    5


     


    




 





	Knoxville Home Therapies, LLC	 	National Health Infusion, Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	Natural Living, Inc.	 	New England Home Therapies, Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	Option Health, Ltd.	 	Professional Home Care Services, Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	Regional Ambulatory Diagnostics, Inc.	 	Scott-Wilson, Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary


 


 


	Specialty Pharma, Inc.	 	Wilcox Medical, Inc.
	 	 	 
	 	 	 
	By:	/s/ Kathryn Stalmack	 	By:	/s/ Kathryn Stalmack
	Name:	Kathryn Stalmack	 	Name:	Kathryn Stalmack
	Title:	Senior Vice President, General Counsel and Secretary	 	Title:	Senior Vice President, General Counsel and Secretary



 



    6