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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”).
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:
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a)
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The
Agreement will be administered and interpreted in a man
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