EX-10.2







Exhibit 10.2




AMENDMENT NUMBER 1




TO




SEVERANCE AGREEMENT FOR BARRY A. POSNER




     This is Amendment Number 1 to the Severance Agreement by and between BIOSCRIP, INC. (the
“Company”) and Barry A. Posner (the “Executive”) dated as of August 24, 2006 (the “Severance
Agreement”).



§ 1.




     Pursuant to Section 3.5 of the Severance Agreement, the Severance Agreement hereby is amended
to add a new Section 3.15 and a new Section 3.16 as follows:



     3.15. The payments, benefits and vesting, if any, to which Executive is entitled under Section
2 (and all other payments, benefits and vesting to which Executive may be entitled) shall be
provided without regard to whether the deductibility of such payments, benefits and vesting would
be limited or precluded by Section 280G of the Internal Revenue Code (“Section 280G”) and without
regard to whether such payments (or any other payment, benefits and vesting) would subject
Executive to the federal excise tax levied on certain “excess parachute payments” under Section
4999 of the Code (the “Excise Tax”). If any portion of the payments, benefits and vesting to or
for Executive’s benefit (including, but not limited to, payments, benefits and vesting under this
Agreement but determined without regard to this paragraph) constitutes an “excess parachute
payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter
referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an
additional amount (the “gross-up payment”) that after reduction for all taxes (including but not
limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect
to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be
considered “deferred compensation” for purposes of Section 409A of the Internal Revenue Code
(“Section 409A”), the manner and time of payment, and the provisions of this Section shall be
adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements
of Section 409A with respect to such payment so that the payment does not give rise to the interest
or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code.
The determination as to whether Executive’s payments, benefits and vesting include Excess Parachute
Payments and, if so, the amount of such, the amount of any Excise Tax owed with respect thereto,
and the amount of any gross-up payment shall be made at the Company’s expense by such certified
public accounting firm as the Board of Directors may designate prior to a Change of Control.



     3.16. To the extent applicable, it is intended that this Agreement comply with the provisions
of Section 409A in accordance with the provisions below:




	 	a)	 	The Agreement will be administered and interpreted in a manner consistent
with this intent, and any provision that would cause the Agreement to fail to satisfy
Section 409A will have no force and effect until amended to comply therewith (which
amendment may be retroactive to the extent permitted by Section 409A). In addition,




 









 






	 	 	 	the parties shall cooperate fully with one another to ensure compliance with Section
409A, including, without limitation, adopting amendments to arrangements subject to
Section 409A and operating such arrangements in compliance with Section 409A.
	 
	 	b)	 	Notwithstanding any other provision of the Agreement to the contrary, to the
extent any payment or benefit to be paid or provided to Executive pursuant to the
Agreement as a result of the termination of his employment constitutes “non-qualified
deferred compensation” subject to Section 409A, such payment or benefit shall be paid
or provided to the Executive under the Agreement at such time as the Executive would
be considered to have incurred a “separation from service” from the Company within the
meaning of Section 409A (without regard to whether such “separation from service”
comes before, after or coincides with his termination of employment). For purposes of
clarification, this paragraph shall not cause a forfeiture of any payment or benefits
on the part of Executive, but shall only act as a delay until such time as a
“separation from service” occurs.
	 
	 	c)	 	Notwithstanding any other provisions of the Agreement to the contrary, if any
amount (including imputed income) to be paid to Executive pursuant to the Agreement as
a result of Executive’s termination of employment is “deferred compensation” subject
to Section 409A, and if Executive is a “specified employee” (as defined under Section
409A) as of the termination date, then, to the extent necessary to avoid the
imposition of additional tax or other penalties under Section 409A, the payment of
benefits, if any, scheduled to be paid by the Company to Executive hereunder during
the first six-month period following the date of employment termination shall not be
paid until the date which is the first business day which comes six months and a one
day after the date the Executive has incurred a “separation from service” within the
meaning of Section 409A. Any deferred compensation payments delayed in accordance
with the terms of this Section shall be paid in a lump sum on the first day following
such six-month and one day period.
	 
	 	d)	 	With respect to items eligible for reimbursement under the terms of the
Agreement, (i) the amount of such expenses eligible for reimbursement in any taxable
year shall not affect the expenses eligible for reimbursement in another taxable year,
(ii) no such reimbursement may be exchanged or liquidated for another payment or
benefit, and (iii) any reimbursements of such expenses shall be made no later than the
end of the calendar year following the calendar in which the related expenses were
incurred, except, in each case, to the extent that the right to reimbursement does not
provide for a “deferral of compensation” within the meaning of Section 409A.
	 
	 	e)	 	It is intended that each installment of payments and benefits provided under
the Agreement shall be treated as a separate identified payment for purposes of
Section 409A. Neither the Company nor Executive shall have the right to accelerate or
defer the delivery of any such payments or benefits except to the extent specifically
permitted or required by Section 409A.




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	 	f)	 	The Company agrees to act in good faith under this Section 3.1 based on the
guidance available from the Treasury Department and Internal Revenue Service
respecting the proper interpretation of Section 409A, but nothing in this Section 3.1
shall constitute, or be construed as, a covenant by the Company that no payment will
be made or benefit will be provided which will be subject to taxation under Section
409A or as a guarantee or indemnity by the Company with respect to the tax
consequences to any such payment or benefit.





§ 2.




     Except as expressly amended by this Amendment Number 1, the Severance Agreement shall remain
in full force and effect.



§ 3.




     This Amendment Number 1 shall be effective as December 31, 2008.



	 	 	 	 	 	 	 
	BIOSCRIP, INC.	 	 	 	 
	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 

Richard H. Friedman
	 	 

Barry A. Posner
	 	 
	 

	 	Chief Executive Officer	 	 	 	 
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 






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