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.

Delaware		05-0489664
(State or Other Jurisdiction		(I.R.S. Employer Identification No.)
of Incorporation or Organization)

100 Clearbrook Road
Elmsford, NY		10523
(Address of Principal Executive Offices)		(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)

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):

Large accelerated filer o		Accelerated filer þ		Non-accelerated filer o		Smaller reporting company o
		(Do not check if a smaller reporting company)

CALCULATION OF REGISTRATION FEE

Proposed

Proposed

Maximum

Title of Securities

Amount to be

Maximum Offering

Aggregate Offering

Amount of

to be Registered

Registered(1)

Price Per Share(2)

Price(2)

Registration Fee(2)

Common stock, par value $0.0001 per share

3,106,315

$

6.55

$

23,143,641.27

$

1650.14

 

 

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:

	(a)		Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed with the SEC on March 2, 2010;
	(b)		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;
	(c)		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;
	(d)		Current Reports on Form 8-K filed with the SEC on January 27, 2010 and March 16, 2010; and
	(e)		the description of the Registrant’s 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.

     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 Registrant’s 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 Registrant’s 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 director’s 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.

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.

     Not applicable.

ITEM 8. EXHIBITS.

The following exhibits are filed as part of this Registration Statement:

Exhibit No.		Exhibit Description
4.1		Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on March 17, 2005, SEC Accession No. 0000950123-05-003294).
4.2		Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 16, 2007, SEC Accession No. 0000950123-07-007569).
4.3		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 Company’s Form 8-A/A dated December 4, 2002).
4.4		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 Company’s Current Report on Form 8-K dated December 14, 2006, SEC Accession No. 0000950123-06-0155184).
4.5		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 Company’s Current Report on Form 8-K dated March 4, 2009, SEC Accession No. 0001014739-09-000006).
4.6		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 Company’s Current Report on Form 8-K dated January 27, 2010, SEC Accession No. 0000950123-10-005446).
5.1		Opinion of Barry A. Posner
10.1		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).
10.2		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).
10.3		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).
10.4		Third Amendment to Critical Homecare Solutions Holdings Inc. 2006 Equity Incentive Plan.
10.5		Fourth Amendment to Critical Homecare Solutions Holdings Inc. 2006 Equity Incentive Plan.
10.6		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).
23.1		Consent of Ernst & Young LLP
23.2		Consent of PricewaterhouseCoopers LLP

Exhibit No.		Exhibit Description
23.3		Consent of Deloitte & Touche LLP
23.4		Consent of Barry A. Posner (included as part of Exhibit 5.1)

ITEM 9.		UNDERTAKINGS.

(a)

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 registrant’s 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 plan’s 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.

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.

     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:

Signature		Title(s)
/s/ Richard H. Friedman		Chairman of the Board and Chief Executive
Richard H. Friedman		Officer (Principal Executive Officer)
/s/ Stanley G. Rosenbaum		Chief Financial Officer and Treasurer (Principal Financial Officer and Principal
Stanley G. Rosenbaum		Accounting Officer)
/s/ Richard M. Smith		President and Chief Operating Officer, Director
Richard M. Smith
/s/ Charlotte W. Collins		Director
Charlotte W. Collins
/s/ Louis T. DiFazio, Ph.D.		Director
Louis T. DiFazio, Ph.D.
/s/ Myron Z. Holubiak		Director
Myron Z. Holubiak
/s/ David R. Hubers		Director
David R. Hubers
/s/ Richard L. Robbins		Director
Richard L. Robbins
/s/ Stuart A. Samuels		Director
Stuart A. Samuels
		Director
Samuel P. Frieder
Gordon H. Woodward		Director

EXHIBIT INDEX

Exhibit No.		Exhibit Description
4.1		Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on March 17, 2005, SEC Accession No. 0000950123-05-003294).
4.2		Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 16, 2007, SEC Accession No. 0000950123-07-007569).
4.3		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 Company’s Form 8-A/A dated December 4, 2002).
4.4		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 Company’s Current Report on Form  8-K dated December 14, 2006, SEC Accession No. 0000950123-06-0155184).
4.5		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 Company’s Current Report on Form 8-K dated March 4, 2009, SEC Accession No. 0001014739-09-000006).
4.6		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 Company’s Current Report on Form 8-K dated January 27, 2010, SEC Accession No. 0000950123-10-005446).
5.1		Opinion of Barry A. Posner
10.1		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).
10.2		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).
10.3		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).
10.4		Third Amendment to Critical Homecare Solutions Holdings Inc. 2006 Equity Incentive Plan.
10.5		Fourth Amendment to Critical Homecare Solutions Holdings Inc. 2006 Equity Incentive Plan.
10.6		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).
23.1		Consent of Ernst & Young LLP
23.2		Consent of PricewaterhouseCoopers LLP
23.3		Consent of Deloitte & Touche LLP
23.4		Consent of Barry A. Posner (included as part of Exhibit 5.1)

Exhibit 5.1

March 26, 2010

BioScrip, Inc.
100 Clearbrook Road
Elmsford, New York 10523

Re:		BioScrip, Inc. — Registration Statement on Form S-8

Ladies and Gentlemen:

     As executive vice president, secretary and general counsel of BioScrip, Inc., a Delaware corporation (the “Company”), I have participated in the preparation of the Company’s Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission relating to the registration under the Securities Act of 1933, as amended, of 3,106,315 shares (the “Shares”) of the Company’s Common Stock, par value $.0001 per share (“Common Stock”) issuable under the BioScrip/CHS 2006 Equity Incentive Plan (the “CHS Plan”).

     As general counsel, I have examined and relied upon the originals, or copies certified or otherwise identified to my satisfaction, of (i) the Certificate of Incorporation and By-Laws of the Company, as amended and in effect as of the date of this opinion; (ii) the CHS Plan; (iii) certain stock option agreements, as amended, representing 716,086 Shares; (iv) resolutions adopted by the Company’s Board of Directors; and (v) such other records, documents, certificates and instruments as in my judgment are necessary or appropriate to form the basis for the opinions hereinafter set forth. In all such examinations, I have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to me as certified, conformed or photographic copies, and as to certificates of public officials, I have assumed the same to have been properly given and to be accurate.

     I am authorized to practice law in the states of New York and Connecticut. The opinions expressed herein are limited in all respects to the corporate laws of the State of Delaware, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect that such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.

     Based upon the foregoing, and subject to the assumptions, qualifications and limitations set forth herein, I am of the opinion that the Shares have been duly authorized for issuance and the Shares, when issued in accordance with the terms of the CHS Plan, will be validly issued, fully paid and non-assessable.

     This opinion is given as of the date hereof, and I assume no obligation to advise you after the date hereof of facts or circumstances that come to my attention or changes in law that occur that could affect the opinions contained herein. This opinion is being rendered solely for the benefit of BioScrip, Inc. in connection with the matters addressed herein. This opinion may not be furnished to or relied upon by any person or entity for any purpose without my prior written consent.

     I am an officer of the Company and an officer and director of each of the Company’s subsidiaries (except for BioScrip Nursing Services, LLC). I own an aggregate of 50,126 shares of Common Stock, vested options to purchase 384,471 shares of Common Stock and unvested options to purchase 83,541 shares of Common Stock. I participate in the Company’s 2008 Equity Incentive Plan.

     I consent to the filing of this opinion as an Exhibit to the Registration Statement.

		Very truly yours,
		/s/ Barry A. Posner
		Barry A. Posner
		General Counsel

Exhibit 10.4

THIRD AMENDMENT
TO THE
CRITICAL HOMECARE SOLUTIONS HOLDING, INC. 2006 EQUITY INCENTIVE PLAN

THIS THIRD AMENDMENT (“Amendment”) is made as of this 1st day of June, 2009, to the Critical Homecare Solutions Holding, Inc. 2006 Equity Incentive Plan (the “Plan”).

RECITALS

WHEREAS, Section 12 of the Plan provides that the Board of Directors of Critical Homecare Solutions Holdings, Inc., ( the “Company”) in its sole discretion may amend the Plan or any portion of the Plan at any time and in such respects as it shall deem advisable; provided, however, that, to the extent required b applicable law, regulation or stock exchange rule, stockholder approval shall be required for any amendment to the Plan; and

WHEREAS, the Board of Directors of the Company (the “Board”) desires to amend the Plan in order to provide that the Company’s initial public offering shall constitute a “company Transaction” as defined in the Plan; and

WHEREAS, the Board has determined that it is within its authority under the Plan to amend the Plan as set forth herein, that such amendment is desired and appropriate at this time and that, although stockholder approval of such amendment is not required, the effectiveness of such amendment shall be subject to stockholder approval; and

WHEREAS, the Board has determined that the terms of this amendment shall be effective with respect to each participant (as defined in the Plan) to whom one or more options under the Plan have been previously granted; and

WHEREAS, the undersigned has been authorized by the Board to execute this Amendment the Board’s behalf.

AMENDMENT

NOW, THEREFORE, the Plan hereby amended as follows:

1.		Section 4.1 is hereby deleted and replaced in its entirety with the following:
2.		Subject to adjustment from time to time as provided in Section 11.1, a maximum of 13,000,000  shares of Common Stock shall be available for issuance under the Plan. Shares of Common Stock issued under the Plan shall be drawn from authorized and unissued shares of Common Stock or  shares of Common Stock now held or subsequently acquired by the Company as treasury shares.
3.		The definition of “Invested Capital” as contained in Appendix A to the Plan is hereby deleted in its entirety.

4.		Any inconsistent provisions of the Plan shall be read consistent with this Amendment.
5.		Except as amended above, each and every other provision of the Plan, as effective immediately prior to this Amendment, shall remain in full force and effect without change or modification.
6.		The Effective Date of this Amendment shall be June 1, 2009.

     IN WITNESS WHEREOF, the undersigned, being authorized by the Board to execute this Amendment in evidence of the adoption of this Amendment by the Board, has executed this Amendment as of the date first written above.

Exhibit 10.5

FOURTH AMENDMENT

CRITICAL HOMECARE SOLUTIONS, INC. 2006 EQUITY INCENTIVE PLAN

AS EFFECTIVE ON MARCH 25, 2010

     WHEREAS, Critical Homecare Solutions Holdings, Inc. (the “Company”) maintained the Critical Homecare Solutions, Inc. 2006 Equity Incentive Plan, as amended through the Third Amendment (the “Plan”) immediately before the merger (the “Merger”) effected pursuant to the Agreement and Plan of Merger (in relevant part) by and among BioScrip, Inc. (“Parent”) and the Company dated as of January 24, 2010 (the “Merger Agreement”); and

     WHEREAS, Section 3.7(a) of the Merger Agreement provided that Parent effective at the closing of the Merger (the “Closing”) would assume the Plan and substitute shares of Parent stock (“Parent Stock”) for the shares of Common Stock (as defined in the Merger Agreement) available for issuance under the Plan immediately before the Closing based on the “Exchange Ratio” (as defined in the Merger Agreement) and rounding down to nearest whole share of Parent Stock; and

     WHEREAS, Parent desires to amend the Plan to reflect the adoption of the Plan by Parent and the substitution of Parent Stock for Common Stock and such other changes in the administration of the Plan as Parent deems necessary or appropriate under the circumstances;

     NOW, THEREFORE, the Plan is hereby amended effective as of the Closing as follows:

§1

NAME CHANGE

     The name of the Plan effective as of the Closing shall be the “BioScrip/CHS 2006 Equity Incentive Plan (the “BioScrip/CHS Plan”).

§2

PARENT STOCK

     All of the shares of Common Stock available for issuance under the Plan immediately before the Closing shall be converted into shares of Parent Stock effective as of the Closing using the Exchange Ratio and rounding down to the nearest whole

share of Parent Stock, and all references in the BioScrip/CHS Plan to Common Stock shall be to Parent Stock.

§3

REFERENCES

     All references in the BioScrip/CHS Plan to

(a) the “Board” shall be to the Board of Directors of Parent.

(b) the “Plan Administrator” shall be to the Management Development & Compensation Committee of the Board or to such other committee appointed by the Board.

§4

ROLL OVER OPTION

     4.1 The term “Roll Over Option” shall mean a “Roll Over Option” as defined in the Merger Agreement.

     4.2 The Plan Administrator shall continue to have the same discretionary powers and exclusive authority under the BioScrip/CHS Plan as the Plan Administrator had under the Plan, provided the Plan Administrator shall only exercise such powers and authority with respect to the Roll Over Options to the extent deemed necessary or appropriate and consistent with the regulations under Section 409A of the Code to reflect the conversion of Common Stock into Parent Stock.

     4.3 Any Parent Stock subject to a Roll Over Option which expires before all or any part of the shares of Parent Stock subject to such option have been purchased pursuant to the exercise of such option shall remain available for issuance under the BioScrip/CHS Plan.

§5

NEW OPTION GRANTS

     The Plan Administrator may grant Options to purchase Parent Stock under the BioScrip/CHS Plan after the Closing, but any such grants shall be made subject to the terms and conditions which would apply to the grant of an option under the BioScrip, Inc. 2008 Equity Incentive Plan, as amended, all of which terms and conditions are incorporated by this reference in the BioScrip/CHS Plan, so that the terms and conditions of an Option grant under the BioScrip/CHS Plan will be the same in all material respects as the terms and conditions of an option grant under the BioScrip, Inc. 2008 Equity Incentive Plan, as amended, except that the shares of Parent Stock purchased upon the exercise of such Option shall be issued under the BioScrip/CHS Plan.

     IN WITNESS WHEREOF, BioScrip, Inc. as Parent under the Merger Agreement has caused its duly authorized officer to execute this Fourth Amendment to the Plan.

BioScrip, Inc.

By: /s/ Barry A. Posner

Date: March 25, 2010

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the BioScrip/CHS 2006 Equity Incentive Plan of BioScrip, Inc. of our reports dated March 2, 2010, with respect to the consolidated financial statements and schedule of BioScrip, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2009, and the effectiveness of internal control over financial reporting of BioScrip, Inc. filed with the Securities and Exchange Commission.

Minneapolis, Minnesota
March 23, 2010

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of BioScrip of our report dated March 10, 2010 for Critical Homecare Solutions Holdings, Inc. for the year ended December 31, 2009 relating to the financial statements, which appears in BioScrip’s Form 8-K dated March 15, 2010.

/s/ PricewaterhouseCoopers LLP

Philadelphia, Pennsylvania
March 26, 2010

Exhibit 23.3

CONSENT OF INDEPENDENT AUDITORS

We consent to the incorporation by reference in this Registration Statement of BioScrip, Inc. on Form S-8 of our report dated April 22, 2009 related to the consolidated financial statements of Critical Homecare Solutions Holdings, Inc. and Subsidiaries as of and for the years ended December 31, 2008 and 2007, appearing in the Proxy Statement on Schedule 14A of Bioscrip, Inc., dated February 24, 2010, which is incorporated by reference in this Registration Statement.

/s/ Deloitte & Touche LLP

March 25, 2010