sv8
As filed with the Securities and Exchange Commission on March 26, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BioScrip, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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05-0489664 |
(State or Other Jurisdiction
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(I.R.S. Employer Identification No.) |
of Incorporation or Organization) |
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100 Clearbrook Road |
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Elmsford, NY
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10523 |
(Address of Principal Executive Offices)
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(Zip Code) |
BioScrip/CHS 2006 Equity Incentive Plan
(Full Title of the Plan)
Barry A. Posner
General Counsel
BioScrip, Inc.
100 Clearbrook Road
Elmsford, NY 10523
(Name and address of agent for service)
(914) 460-1600
(Telephone number, including area code, of agent for service)
Copies to:
E. William Bates, II
King & Spalding LLP
1185 Avenue of the Americas
New York, New York 10036-4003
(212) 556-2100
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer o
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Accelerated filer þ
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Title of Securities |
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Amount to be |
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Maximum Offering |
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Aggregate Offering |
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Amount of |
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to be Registered |
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Registered(1) |
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Price Per Share(2) |
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Price(2) |
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Registration Fee(2) |
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Common stock,
par value $0.0001
per share
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3,106,315 |
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$ |
6.55 |
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23,143,641.27 |
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$ |
1650.14 |
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(1) |
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act),
this registration statement also covers an indeterminate number of additional shares of common
stock issuable with respect to the shares being registered hereunder by reason of any stock
dividend, stock split, recapitalization or other similar transaction. |
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(2) |
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The proposed maximum aggregate offering price of the registrants common stock was calculated
based upon (i) the aggregate exercise price for outstanding options to purchase 716,086 shares of
common stock being registered in accordance with Rule 457(h)(1) under the Securities Act; and (ii)
the market value for remaining shares of the common stock in accordance with Rule 457(c) under the
Securities Act as follows: the product of (A) $8.265, the average of the high and low prices per
share of the common stock on the Nasdaq Global Market on March 22, 2010, and (B) 2,390,229. |
EXPLANATORY NOTE
On March 25, 2010, BioScrip, Inc. (the Registrant) completed its acquisition of Critical
Homecare Solutions Holdings, Inc. (CHS) through the merger (the Merger) of CHS with and into
Camelot Acquisition Corp., a wholly owned subsidiary of the Registrant (the Merger Sub). As a
result of the Merger, the separate corporate existence of CHS ceased and Merger Sub is continuing
as the surviving corporation of the Merger and a wholly owned subsidiary of the Company under the
name CHS Holdings, Inc. The Merger was effected pursuant to an Agreement and Plan of Merger,
dated as of January 24, 2010, by and among the Registrant, Merger Sub, CHS, Kohlberg Investors V,
L.P., Kohlberg Partners V, L.P., Kohlberg Offshore Investors V, L.P., Kohlberg TE Investors V,
L.P., KOCO Investors V, L.P., Robert Cucuel, Mary Jane Graves, Nitin Patel, Joey Ryan, Blackstone
Mezzanine Partners II L.P., Blackstone Mezzanine Holdings II L.P., and S.A.C. Domestic Capital
Funding, Ltd. (the Merger Agreement). In connection with the Merger, a portion of the existing
options under BioScrip/CHS 2006 Equity Incentive Plan (the Plan) held by the top five executives
of CHS were converted into options for Common Stock, par value $0.0001 per share, of the
Registrant (Company Common Stock) in accordance with the terms of the Merger Agreement and
otherwise remain subject to the terms of the Plan, as amended. All remaining in-the-money Options
were cashed out in connection with the Merger. Out-of-the-money Options were cancelled at the
effective time of the Merger. This Registration Statement on Form S-8 has been filed by the
Registrant to register the shares of Company Common Stock underlying the converted options which
remain subject to the terms of the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with Rule 428 under the Securities Act and the instructional note to Part I of
Form S-8, the information specified in Part I of Form S-8 has been omitted from the filing of this
Registration Statement. The documents containing the information specified in Part I of Form S-8
will be sent or given to the participants in the Plan covered by this Registration Statement as
specified by Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission (the SEC) by the
Registrant are hereby incorporated by reference in this Registration Statement:
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(a) |
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Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed
with the SEC on March 2, 2010; |
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(b) |
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Audited Consolidated Financial Statements of CHS, and the notes thereto, as of
and for the fiscal year ended December 31, 2009, filed with the SEC as Exhibit 99.1 to
Current Report on Form 8-K on March 16, 2010; |
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(c) |
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Audited Consolidated Financial Statements of CHS, and the notes thereto, as of
and for the fiscal year ended December 31, 2008 and 2007 filed with the SEC as pages F-2
F-26 of the Proxy Statement on Schedule 14A on February 24, 2010; |
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(d) |
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Current Reports on Form 8-K filed with the SEC on January 27, 2010 and March 16,
2010; and |
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(e) |
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the description of the Registrants common stock contained in our registration
statement on Form 8-A/A filed with the SEC on August 1, 1996, Form 8-A/A filed with the
SEC on December 4, 2002, Form 8-A/A filed with the SEC on December 14, 2006 and Form
8-A/A filed with the SEC on March 4, 2009, including any amendment or reports filed for
the purpose of updating such description. |
II-1
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, after the date of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such documents. Any
statement contained in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Barry
A. Posner, the Registrants Executive Vice President, Secretary and General Counsel, has
passed upon certain legal matters in connection with the registration
of the Company Common Stock offered
hereby, including the validity of the Company Common Stock offered hereby. As of the date hereof,
Mr. Posner owns an aggregate of 50,126 shares of Company Common Stock, vested options to purchase 384,471
shares of Company Common Stock and unvested options to purchase
83,541 shares of Company Common Stock. Mr. Posner
participates in the Registrants 2008 Equity Incentive Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (DGCL) provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding whether civil, criminal or investigative (other
than an action by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145
further provides that a corporation similarly may indemnify any such person serving in any such
capacity who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a judgment in its favor,
against expenses (including attorneys fees) actually and reasonably incurred in connection with
the defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the corporation and except
that no indemnification shall be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless and only to the extent that
the Delaware Court of Chancery or such other court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation, in its certificate of incorporation, to
limit or eliminate the liability of directors to the corporation or its stockholders for monetary
damages for breaches of fiduciary duty, except for liability (a) for any breach of the directors
duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the
DGCL (relating to unlawful payment of dividends and unlawful stock purchase and redemption), or
(d) for any transaction from which the director derived an improper personal benefit. Our Second
Amended and Restated Certificate of Incorporation provides that our directors shall not be
personally liable for monetary damages to the company or its stockholders for breach of fiduciary
duty as a director, except for liability arising out of clauses (a) through (d) in the preceding
paragraph. The Second Amended and Restated Certificate of Incorporation and our Amended and
Restated By-Laws further provide that we shall indemnify our directors and officers to the fullest
extent permitted by the DGCL.
In addition, we maintain director and officer liability insurance policies. under which the
directors and officers of the Company are insured, within the limits and subject to the limitations
of the policies, against certain expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been directors or officers,
which could include liabilities under the Securities Act or the Exchange Act.
II-2
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
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Exhibit No. |
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Exhibit Description |
4.1
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Second Amended and Restated Certificate of Incorporation (incorporated by reference to
Exhibit 4.1 to the Companys Current Report on Form 8-K filed on March 17, 2005, SEC
Accession No. 0000950123-05-003294). |
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4.2
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Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Companys
Current Report on Form 8-K filed on May 16, 2007, SEC Accession No.
0000950123-07-007569). |
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4.3
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Amended and Restated Rights Agreement, dated as of December 3, 2002 (the Rights
Agreement) by and between the Company and American Stock Transfer & Trust Company
(incorporated by reference to Exhibit 4.1 to the Post-Effective Amendment No. 3 to the
Companys Form 8-A/A dated December 4, 2002). |
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4.4
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First Amendment, dated as of December 13, 2006, to the Rights Agreement, by and between
the Company and American Stock Transfer & Trust Company, as Rights Agent (incorporated
by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K dated December
14, 2006, SEC Accession No. 0000950123-06-0155184). |
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4.5
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Second Amendment, dated March 4, 2009, to the Rights Agreement, as amended on December
13, 2006, between the Company and American Stock Transfer & Trust Company, as Rights
Agent (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form
8-K dated March 4, 2009, SEC Accession No. 0001014739-09-000006). |
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4.6
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Third Amendment, dated as of January 24, 2010, to the Rights Agreement by and between
the Company and American Stock Transfer & Trust Company LLC, as Rights Agent
(incorporated by reference to Exhibit 4.1 to the Companys Current Report on Form 8-K
dated January 27, 2010, SEC Accession No. 0000950123-10-005446). |
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5.1
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Opinion of Barry A. Posner |
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10.1
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KCHS Holdings, Inc. 2006 Equity Incentive Plan (incorporated by reference to
Exhibit 10.9 to Critical Homecare Solutions Holdings Inc.s Registration Statement on
Form S-1 dated October 10, 2007, SEC Accession No.
0001193125-07-216293). |
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10.2
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Amendment to the KCHS Holdings, Inc. 2006 Equity Incentive Plan (incorporated by
reference to Exhibit 10.10 to Critical Homecare Solutions Holdings Inc.s Registration
Statement on Form S-1 dated October 10, 2007, SEC Accession No.
0001193125-07-216293). |
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10.3
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Second Amendment to the KCHS Holdings, Inc. 2006 Equity Incentive Plan (incorporated by
reference to Exhibit 10.11 to Critical Homecare Solutions Holdings Inc.s Registration
Statement on Form S-1 dated October 10, 2007, SEC Accession No.
0001193125-07-216293). |
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10.4
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Third Amendment to Critical Homecare Solutions Holdings Inc. 2006 Equity Incentive Plan. |
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10.5
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Fourth Amendment to Critical Homecare Solutions Holdings Inc. 2006 Equity Incentive Plan. |
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10.6
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Form of Stock Award Agreement under the 2006 Equity Incentive Plan (incorporated by
reference to Exhibit 10.12 to Critical Homecare Solutions Holdings Inc.s Registration
Statement on Form S-1 dated October 10, 2007, SEC Accession No.
0001193125-07-216293). |
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23.1
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Consent of Ernst & Young LLP |
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23.2
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Consent of PricewaterhouseCoopers LLP |
II-3
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Exhibit No. |
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Exhibit Description |
23.3
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Consent of Deloitte & Touche LLP |
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23.4
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Consent of Barry A. Posner (included as part of Exhibit 5.1) |
II-4
(a) |
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The Registrant hereby undertakes: |
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee table in the effective
registration statement.
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration
statement is on Form S-8, and the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the
Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(b) The registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrants annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, BioScrip, Inc. certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Elmsford, State of New York, on March 22, 2010.
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BIOSCRIP, INC.
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By: |
/s/ Barry A. Posner
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Name: |
Barry A. Posner |
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Title: |
Executive Vice President, Secretary and General Counsel |
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed below by the following persons in the capacities indicated on March 22, 2010:
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Signature |
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Title(s) |
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/s/ Richard H. Friedman
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Chairman of the Board and Chief Executive |
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Richard H. Friedman
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Officer (Principal Executive Officer) |
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/s/ Stanley G. Rosenbaum
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Chief Financial Officer and Treasurer
(Principal Financial Officer and Principal |
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Stanley G. Rosenbaum
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Accounting Officer) |
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/s/ Richard M. Smith
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President and Chief Operating Officer, Director |
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Richard M. Smith |
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/s/ Charlotte W. Collins
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Director |
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Charlotte W. Collins |
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/s/ Louis T. DiFazio, Ph.D.
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Director |
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Louis T. DiFazio, Ph.D. |
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/s/ Myron Z. Holubiak
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Director |
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Myron Z. Holubiak |
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/s/ David R. Hubers
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Director |
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David R. Hubers |
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/s/ Richard L. Robbins
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Director |
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Richard L. Robbins |
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/s/ Stuart A. Samuels
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Director |
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Stuart A. Samuels |
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Director |
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Samuel P. Frieder |
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Gordon H. Woodward |
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Director |
II-6
EXHIBIT INDEX
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Exhibit No. |
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Exhibit Description |
4.1
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Second Amended and Restated Certificate of Incorporation (incorporated by reference to
Exhibit 4.1 to the Companys Current Report on Form 8-K filed on March 17, 2005, SEC
Accession No. 0000950123-05-003294). |
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4.2
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Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Companys
Current Report on Form 8-K filed on May 16, 2007, SEC Accession No.
0000950123-07-007569). |
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4.3
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Amended and Restated Rights Agreement, dated as of December 3, 2002 (the Rights
Agreement) by and between the Company and American Stock Transfer & Trust Company
(incorporated by reference to Exhibit 4.1 to the Post-Effective Amendment No. 3 to the
Companys Form 8-A/A dated December 4, 2002). |
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4.4
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First Amendment, dated as of December 13, 2006, to the Rights Agreement, by and between
the Company and American Stock Transfer & Trust Company, as Rights Agent (incorporated
by reference to Exhibit 10.1 to the Companys Current Report on Form
8-K dated December
14, 2006, SEC Accession No. 0000950123-06-0155184). |
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4.5
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Second Amendment, dated March 4, 2009, to the Rights Agreement, as amended on December
13, 2006, between the Company and American Stock Transfer & Trust Company, as Rights
Agent (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form
8-K dated March 4, 2009, SEC Accession No. 0001014739-09-000006). |
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4.6
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Third Amendment, dated as of January 24, 2010, to the Rights Agreement by and between
the Company and American Stock Transfer & Trust Company LLC, as Rights Agent
(incorporated by reference to Exhibit 4.1 to the Companys Current Report on Form 8-K
dated January 27, 2010, SEC Accession No. 0000950123-10-005446). |
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5.1
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Opinion of Barry A. Posner |
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10.1
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KCHS Holdings, Inc. 2006 Equity Incentive Plan (incorporated by reference to Exhibit
10.9 to Critical Homecare Solutions Holdings Inc.s Registration Statement on Form S-1
dated October 10, 2007, SEC Accession No. 0001193125-07-216293). |
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10.2
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Amendment to the KCHS Holdings, Inc. 2006 Equity Incentive Plan (incorporated by
reference to Exhibit 10.10 to Critical Homecare Solutions Holdings Inc.s Registration
Statement on Form S-1 dated October 10, 2007, SEC Accession No.
0001193125-07-216293). |
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10.3
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Second Amendment to the KCHS Holdings, Inc. 2006 Equity Incentive Plan (incorporated by
reference to Exhibit 10.11 to Critical Homecare Solutions Holdings Inc.s Registration
Statement on Form S-1 dated October 10, 2007, SEC Accession No.
0001193125-07-216293). |
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10.4
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Third Amendment to Critical Homecare Solutions Holdings Inc. 2006 Equity Incentive Plan. |
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10.5
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Fourth Amendment to Critical Homecare Solutions Holdings Inc. 2006 Equity Incentive Plan. |
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10.6
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Form of Stock Award Agreement under the 2006 Equity Incentive Plan (incorporated by
reference to Exhibit 10.12 to Critical Homecare Solutions Holdings Inc.s Registration
Statement on Form S-1 dated October 10, 2007, SEC Accession No.
0001193125-07-216293). |
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23.1
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Consent of Ernst & Young LLP |
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23.2
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Consent of PricewaterhouseCoopers LLP |
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23.3
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Consent of Deloitte & Touche LLP |
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23.4
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Consent of Barry A. Posner (included as part of Exhibit 5.1) |