EX-10.1



 








Exhibit 10.1




July 24, 2006




Mr. Anthony Zappa

c/o BioScrip, Inc.

10050 Crosstown Circle

Eden Prairie, MN 55344




     Re: Severance Agreement


Dear Tony:




     This will confirm our agreement that if you are terminated by BioScrip, Inc. (the “Company”)
(or any successor) other than for “Cause” (as defined below) or if you terminate your employment
with the Company (or any successor) for “Good Reason” (as defined below), you will be entitled to
receive severance payments equal to one (1) year of salary at your then current salary level,
payable in accordance with the Company’s then applicable payroll practices and subject to all
applicable federal, state and local withholding, and (ii) all outstanding securities contemplated
to be issued under the terms of the Company’s 2001 Incentive Stock Plan granted to you and held by
you at the time of termination shall vest and become immediately exercisable and shall otherwise be
exercisable in accordance with their terms and conditions. If your employment with the Company is
terminated for any reason whatsoever, whether by you or the Company, the Company would not be
liable for, or obligated to pay you any stock or cash bonus compensation, incentive or otherwise,
or any other compensation contemplated hereby not already paid or not already accrued as of the
date of such termination, and no other benefits shall accrue or vest subsequent to such date.



     For purposes of this Agreement, “Cause” shall mean any of the following: (i) commission by
you of criminal conduct which involves moral turpitude; (ii) acts which constitute fraud or
self-dealing by or on the part of you against the Company or any of its subsidiaries, including,
without limitation, misappropriation or embezzlement; (iii) your willful engagement in conduct
which is materially injurious to the Company or any of its subsidiaries; (iv) your gross misconduct
in the performance of duties as an employee of the Company, including, without limitation, failure
to obey lawful written instructions of the Board of Directors of the Company, any committee thereof
or any executive officer of the Company or failure to correct any conduct which constitutes a
breach of any written agreement between you and the Company or of any written policy promulgated by
the Board of Directors of either the Company, any committee thereof or any executive officer of the
Company, in either case after not less than ten days’ notice in writing to you of the Company’s
intention to terminate you if such failure is not corrected within the specified period (or after
such shorter notice period if the Company in good faith deems such shorter notice period to be
necessary due to the possibility of material injury to the Company).



     For purposes of this Agreement, “Good Reason” shall mean the existence of any one or more of
the following conditions that shall continue for more than 30 days following written notice thereof
by you to the Company: (i) the assignment to you of duties materially inconsistent with your
position or positions with the Company; (ii) the reduction of your then current annual salary rate,
without your consent; or (iii) the relocation of your principal location of employment more than 50
miles from your current location without your consent.



 









 





Mr. Anthony Zappa

July 24, 2006

Page 2




     This letter agreement constitutes the entire understanding of the parties with respect to the
subject matter hereof. This agreement shall be construed in accordance with, and its
interpretation shall otherwise be governed by, the laws of the State of New York, without giving
effect to principles of conflicts of law.



     This letter supersedes and replaces the change of control severance agreement between the
Company and yourself dated as of June 14, 2004 as well as the penultimate paragraph of the
employment letter agreement dated July 18, 2005 between the Company and yourself, both of which
shall be of no further force and effect.



     Kindly signify your agreement to the foregoing by signing below and forward an executed copy
to me for our files.



	 	 	 	 	 
	 	 	Sincerely,
	 
	 	 	 	 
	 	 	BioScrip, Inc.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Barry A. Posner
	 

	 	 	 	 
	 

	 	 	 	Barry A. Posner, EVP and General Counsel
	 
	 	 	 	 
	 
	 	 	 	August 8th, 2006
	 
	 	 	 	 
	Agreed and Accepted

on this 28 day of July, 2006:
	 	 	 	 
	 
	 	 	 	 
	/s/ Anthony Zappa
 


	 	 	 	 
	Anthony Zappa