UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C.
______________________________________________
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
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Date
of Report (Date of earliest event reported): March 4,
2009
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BioScrip,
Inc.
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(Exact
Name of Registrant as Specified in its
Charter)
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Delaware
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0-28740
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05-0489664
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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100
Clearbrook Road, Elmsford, New York
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10523
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code (914)
460-1600
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________________________________________________________________________
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12).
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240-14d-2(b)).
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)).
Item
1.01 Entry into a Material Definitive
Agreement.
Item 3.03 below is incorporated herein by reference.
Item
3.03 Material Modification to Rights of Security
Holders.
On March 3, 2009, Heartland Advisors, Inc. (“Heartland”)
advised management of the Company that it would like to like to acquire
additional shares of the Company’s Common Stock such that Heartland’s
ownership would exceed 20% of the outstanding shares of the Company Common
Stock, the threshold amount for Heartland becoming
an Acquiring Person and triggering the occurrence of a “Distribution Date” under
the Amended and Restated Rights Agreement (the “Rights Agreement”), dated
as of December 3, 2002, between Bioscrip, Inc. (f/k/a/ MIM Corporation), a
Delaware corporation (the “Company”), and American Stock Transfer & Trust
Company, a New York corporation (as amended by Amendment No. 1 dated December
13, 2006, collectively the “Rights Agent”). In response to this
request, on March 4, 2009 the Company entered into the Second Amendment to
the Rights Agreement (the “Second Amendment”) to exclude Heartland
from the definition of “Acquiring Person” unless it becomes, together with its affiliates and
associates, the beneficial owner of 22.5% or more of the outstanding shares of
the Company’s common stock, other than as a result of repurchases by the Company
of shares of the Company’s common stock. Under the Rights
Agreement, as amended, any person
other than Heartland would become an
Acquiring Person upon the acquisition, either alone or together with the affiliates and associates of that person, of the beneficial ownership of 15%
or more of the outstanding shares of the
Company’s common
stock.
The foregoing summary of the Second Amendment does not purport to be complete and is qualified in its entirety by reference to the complete text of the Second Amendment, a copy of which is filed with this report as Exhibit 10.1.
Item
9.01 Financial Statements and
Exhibits.
(c) Exhibits.
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Exhibit No.
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Description of Exhibit
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10.1
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Second
Amendment, dated March 4, 2009, to the Amended and Restated Rights
Agreement, dated as of December 3, 2002 (the “Rights Agreement”),
between
the Company and American Stock Transfer & Trust Company, as Rights
Agent.
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2
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned duly
authorized.
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Date:
March 4, 2009
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BIOSCRIP,
INC.
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By:
/s/
Barry A. Posner
Barry A. Posner, Executive Vice President
Secretary and General Counsel
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3
SECOND
AMENDMENT
TO
AMENDED
AND RESTATED
RIGHTS AGREEMENT
THIS SECOND AMENDMENT
(this “Amendment”) is made as of March 4, 2009 between Bioscrip, Inc.
(f/k/a/ MIM Corporation), a Delaware corporation (the “Company”), and American
Stock Transfer & Trust Company, a New York corporation (the “Rights Agent”).
This Amendment amends the Amended and Restated Rights Agreement, dated as of
December 3, 2002, between the Company and the Rights Agent (the “Rights
Agreement”). Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Rights Agreement.
WHEREAS, the Rights Agreement
provides for the occurrence of certain events on the Distribution Date if a
Person becomes the Beneficial Owner of 15% or more of the shares of Company
Common Stock then outstanding or 20% or more of the shares of Company Common
Stock then outstanding in the case of Heartland Advisors, Inc.
(“Heartland”);
WHEREAS, based on information
contained in an amended Schedule 13G filed by Heartland with the Securities and
Exchange Commission on February 11, 2009, Heartland currently owns 18.9% of the
outstanding shares of Company Common Stock;
WHEREAS, Heartland would like
to acquire additional shares of Company Common Stock such that Heartland’s
ownership would exceed 20% of the outstanding shares of Company Common Stock;
and
WHEREAS, the Company desires
to further amend the Rights Agreement in accordance with Section 26 thereof
to allow for such acquisition by Heartland without Heartland being deemed an
Acquiring Person under the Rights Agreement.
NOW, THEREFORE, in
consideration of the premises and the mutual agreements set forth herein, the
parties hereby agree to amend the Rights Agreement as follows:
1.
Amendment of Section 1,
definition of “Acquiring Person”. The definition of “Acquiring Person” in
Section 1 of the Rights Agreement is amended to read as
follows:
““Acquiring
Person” shall mean any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan maintained by the Company or any of its
Subsidiaries or any trustee or fiduciary with respect to such a plan acting in
such capacity) who or which, alone or together with all Affiliates and
Associates of such Person, is the Beneficial Owner of 15% or more of the shares
of Company Common Stock then outstanding; provided, however, that Heartland
Advisors, Inc. (“Heartland”) shall not be deemed to be an Acquiring Person
unless it is, alone or together with its Affiliates and Associates, the
Beneficial Owner of 22.5% or more of the shares of Company Common Stock then
outstanding. Notwithstanding the foregoing, (i) no Person shall become an
“Acquiring Person” as a result of an acquisition of Company Common Stock by the
Company which, by reducing the number of shares of the Company Common Stock
outstanding, increases the proportionate number of shares Beneficially Owned by
such Person to 15% or more (or 22.5% or more in the case of Heartland) of the
Company Common Stock then
2.
Effectiveness.
This Amendment shall be deemed effective as of the date first written above.
Except as expressly amended hereby, all of the terms and provisions of the
Rights Agreement are and shall remain in full force and effect and shall be
otherwise unaffected by this Amendment.
3.
Severability.
If any term, provision, covenant or restriction of this Amendment is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
4.
Governing Law. This
Amendment shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and construed in accordance
with the laws of such State applicable to contracts to be made and performed
entirely within such State.
5.
Counterparts.
This Amendment may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
6.
Descriptive
Headings. Descriptive headings of the several Sections of this Amendment
are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed as of the date
first above written.
BIOSCRIP, INC.
By: /s/ Barry A. Posner
0;
Name:
Barry A. Posner
Title: Executive
Vice President, Secretary
and General
Counsel
AMERICAN STOCK TRANSFER
& TRUST
COMPANY
By: /s/ Joseph Wolf &#
160;
Name: Joseph
Wolf
Title: Vice
President
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