UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934*

(Amendment No. 3)

 

 

BioScrip, Inc.

(Name of Issuer)

Common Stock, par value $0.0001 per share

(Title of Class of Securities)

09069N108

(CUSIP Number)

Christopher Shackelton/Adam Gray

Metro Center

1 Station Place, 7th Floor South

Stamford, CT 06902

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

June 22, 2016

(Date of Event Which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of sections 240.13d-1(e), 240.13d-1(f) or 140.13d-1(g), check the following box.  ¨

 

 

The information required in the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

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CUSIP No. 09069N108 (Common Stock)

 

1.		Names of Reporting Persons.   Coliseum Capital Management, LLC
2.		Check the Appropriate Box if a Member of a Group (See Instructions)   (a)  ¨        (b)  x
3.		SEC Use Only
4.		Source of Funds (See Instructions)   AF
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)   ¨
6.		Citizenship or Place of Organization   Delaware
Number of Shares Beneficially Owned by Each Reporting Person With				7.		Sole Voting Power   0
				8.		Shared Voting Power   23,182,758 (1)
				9.		Sole Dispositive Power   0
				10.		Shared Dispositive Power   23,182,758 (1)
11.		Aggregate Amount Beneficially Owned by Each Reporting Person   23,182,758 (1)
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
13.		Percent of Class Represented by Amount in Row (11)   17.6% (1)
14.		Type of Reporting Person (See Instructions)   IA

(1)

Includes (a) 5,622,410 shares of common stock, $0.0001 par value per share (the “Common Shares”), (b) 241,749 Common Shares that could be obtained upon conversion of 10,823 shares of Series A Convertible Preferred Stock, par value $0.0001 per share at a conversion price of $5.17 per share (the “Series A Preferred Shares”), (c) 13,718,600 Common Shares that could be obtained upon conversion of 614,177 shares of Series C Convertible Preferred Stock, par value $0.0001 per share at a conversion price of $5.17 per share (the “Series C Preferred Shares”), (d) 1,800,000 Common Shares that could be obtained upon conversion of 1,800,000 Class A warrants to purchase Common Shares at a price of $5.17 per share (the “Class A Warrants”), and (e) 1,800,000 Common Shares that could be obtained upon conversion of 1,800,000 Class B warrants to purchase Common Shares at a price of $6.45 per share (the “Class B Warrants” and, together with the Class A Warrants, the “Warrants”).

 

Page 2 of 9

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CUSIP No. 09069N108 (Common Stock)

 

1.		Names of Reporting Persons.   Coliseum Capital, LLC
2.		Check the Appropriate Box if a Member of a Group (See Instructions)   (a)  ¨        (b)  x
3.		SEC Use Only
4.		Source of Funds (See Instructions)   AF
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)   ¨
6.		Citizenship or Place of Organization   Delaware
Number of Shares Beneficially Owned by Each Reporting Person With				7.		Sole Voting Power
				8.		Shared Voting Power   17,841,112 (1)
				9.		Sole Dispositive Power   0
				10.		Shared Dispositive Power   17,841,112 (1)
11.		Aggregate Amount Beneficially Owned by Each Reporting Person   17,841,112 (1)
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
13.		Percent of Class Represented by Amount in Row (11)   14.0% (1)
14.		Type of Reporting Person (See Instructions)   OO

 

(1)

Includes (a) 4,312,256 Common Shares, (b) 186,242 Common Shares that could be obtained upon conversion of 8,338 Series A Preferred Shares, (c) 10,569,100 Common Shares that could be obtained upon conversion of 473,175 Series C Preferred Shares, (d) 1,386,757 Common Shares that could be obtained upon conversion of 1,386,757 Class A Warrants, and (e) 1,386,757 Common Shares that could be obtained upon conversion of 1,386,757 Class B Warrants.

 

Page 3 of 9

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CUSIP No. 09069N108 (Common Stock)

 

1.		Names of Reporting Persons.   Coliseum Capital Partners, L.P.
2.		Check the Appropriate Box if a Member of a Group (See Instructions)   (a)  ¨        (b)  x
3.		SEC Use Only
4.		Source of Funds (See Instructions)   WC
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)   ¨
6.		Citizenship or Place of Organization   Delaware
Number of Shares Beneficially Owned by Each Reporting Person With				7.		Sole Voting Power   0
				8.		Shared Voting Power   14,553,786 (1)
				9.		Sole Dispositive Power   0
				10.		Shared Dispositive Power   14,553,786 (1)
11.		Aggregate Amount Beneficially Owned by Each Reporting Person   14,553,786 (1)
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
13.		Percent of Class Represented by Amount in Row (11)   11.6% (1)
14.		Type of Reporting Person (See Instructions)   PN

 

(1)

Includes (a) 3,498,690 Common Shares, (b) 152,179 Common Shares that could be obtained upon conversion of 6,813 Series A Preferred Shares, (c) 8,636,541 Common Shares that could be obtained upon conversion of 386,655 Series C Preferred Shares, (d) 1,133,188 Common Shares that could be obtained upon conversion of 1,133,188 Class A Warrants, and (e) 1,133,188 Common Shares that could be obtained upon conversion of 1,133,188 Class B Warrants.

 

Page 4 of 9

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CUSIP No. 09069N108 (Common Stock)

 

1.		Names of Reporting Persons.   Coliseum Capital Partners II, L.P.
2.		Check the Appropriate Box if a Member of a Group (See Instructions)   (a)  ¨        (b)  x
3.		SEC Use Only
4.		Source of Funds (See Instructions)   WC
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)   ¨
6.		Citizenship or Place of Organization   Delaware
Number of Shares Beneficially Owned by Each Reporting Person With				7.		Sole Voting Power   0
				8.		Shared Voting Power   3,287,326 (1)
				9.		Sole Dispositive Power   0
				10.		Shared Dispositive Power   3,287,326 (1)
11.		Aggregate Amount Beneficially Owned by Each Reporting Person   3,287,326 (1)
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
13.		Percent of Class Represented by Amount in Row (11)   2.8% (1)
14.		Type of Reporting Person (See Instructions)   PN

 

(1)

Includes (a) 813,566 Common Shares, (b) 34,063 Common Shares that could be obtained upon conversion of 1,525 Series A Preferred Shares, (c) 1,932,559 Common Shares that could be obtained upon conversion of 86,520 Series C Preferred Shares, (d) 253,569 Common Shares that could be obtained upon conversion of 253,569 Class A Warrants, and (e) 253,569 Common Shares that could be obtained upon conversion of 253,569 Class B Warrants.

 

Page 5 of 9

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CUSIP No. 09069N108 (Common Stock)

 

1.		Names of Reporting Persons.   Adam Gray
2.		Check the Appropriate Box if a Member of a Group (See Instructions)   (a)  ¨        (b)  x
3.		SEC Use Only
4.		Source of Funds (See Instructions)   AF
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)   ¨
6.		Citizenship or Place of Organization   United States
Number of Shares Beneficially Owned by Each Reporting Person With				7.		Sole Voting Power   0
				8.		Shared Voting Power   23,182,758 (1)
				9.		Sole Dispositive Power   0
				10.		Shared Dispositive Power   23,182,758 (1)
11.		Aggregate Amount Beneficially Owned by Each Reporting Person   23,182,758 (1)
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
13.		Percent of Class Represented by Amount in Row (11)   17.6% (1)
14.		Type of Reporting Person (See Instructions)   IN

 

(1)

Includes (a) 5,622,410 Common Shares, (b) 241,749 Common Shares that could be obtained upon conversion of 10,823 shares of Series A Convertible Preferred Stock, (c) 13,718,600 Common Shares that could be obtained upon conversion of 614,177 shares of Series C Convertible Preferred Stock, (d) 1,800,000 Common Shares that could be obtained upon conversion of 1,800,000 Class A Warrants, and (e) 1,800,000 Common Shares that could be obtained upon conversion of 1,800,000 Class B Warrants.

 

Page 6 of 9

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CUSIP No. 09069N108 (Common Stock)

 

1.		Names of Reporting Persons.   Christopher Shackelton
2.		Check the Appropriate Box if a Member of a Group (See Instructions)   (a)  ¨        (b)  x
3.		SEC Use Only
4.		Source of Funds (See Instructions)   AF
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)   ¨
6.		Citizenship or Place of Organization   United States
Number of Shares Beneficially Owned by Each Reporting Person With				7.		Sole Voting Power   0
				8.		Shared Voting Power   23,182,758 (1)
				9.		Sole Dispositive Power   0
				10.		Shared Dispositive Power   23,182,758 (1)
11.		Aggregate Amount Beneficially Owned by Each Reporting Person   23,182,758 (1)
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
13.		Percent of Class Represented by Amount in Row (11)   17.6% (1)
14.		Type of Reporting Person (See Instructions)   IN

 

(1)

Includes (a) 5,622,410 Common Shares, (b) 241,749 Common Shares that could be obtained upon conversion of 10,823 shares of Series A Convertible Preferred Stock, (c) 13,718,600 Common Shares that could be obtained upon conversion of 614,177 shares of Series C Convertible Preferred Stock, (d) 1,800,000 Common Shares that could be obtained upon conversion of 1,800,000 Class A Warrants, and (e) 1,800,000 Common Shares that could be obtained upon conversion of 1,800,000 Class B Warrants.

 

Page 7 of 9

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CUSIP No. 09069N108 (Common Stock)

 

Explanatory Note: This Amendment No. 3 (this “Amendment”) to the Schedule 13D relating to BioScrip, Inc., a Delaware corporation (the “Issuer”), filed by the Filers (as defined below) with the U.S. Securities and Exchange Commission (the “Commission”) on March 19, 2015 (the “Initial 13D”), as amended and supplemented by Amendment No. 1 to the Initial 13D filed on August 27, 2015 and Amendment No. 2 to the Initial 13D filed on April 5, 2016, amends and supplements certain of the items set forth therein.

As used in this Amendment, the term “Filers” collectively refers to:

 

•

Coliseum Capital Management, LLC, a Delaware limited liability company (“CCM”);

 

•

Coliseum Capital, LLC, a Delaware limited liability company (“CC”);

 

•

Coliseum Capital Partners, L.P., a Delaware limited partnership (“CCP”);

 

•

Coliseum Capital Partners II, L.P., a Delaware limited partnership (“CCP2”);

 

•

Adam Gray (“Gray”); and

 

•

Christopher Shackelton, a director of the Issuer (“Shackelton”).

Item 3. Source and Amount of Funds or Other Consideration.

The source and amount of funds used in purchasing the Common Stock referred to in Item 4 below by the Filers and a separate account investment advisory client of CCM (the “Separate Account”) were as follows:

 

Purchaser		Source of Funds				Amount
CCP			Working Capital			$	5,288,210.00
CCP2			Working Capital			$	1,183,324.00
Separate Account			Working Capital			$	1,928,466.00

Item 4. Purpose of Transaction.

Item 4 is supplemented as follows:

Capitalized terms used herein but not defined herein have the meanings assigned to them in the Initial 13D.

On June 16, 2016, the Issuer entered into an Underwriting Agreement among the Issuer and Jefferies LLC, as representative for the underwriters therein, relating to an underwritten public offering of 45,200,000 Common Shares (the “Offering”). The Filers acquired 4,200,000 Common Shares in the Offering at a purchase price of $2.00 per share.

Item 5. Interest in Securities of the Issuer.

Item 5 is amended and supplemented as follows:

The information relating to the beneficial ownership of Common Shares by each of the Filers set forth in Rows 7 through 13 of the cover pages hereto is incorporated herein by reference. The percentages set forth in Row 13 for all cover pages filed herewith are calculated based upon 113,980,241 Common Shares outstanding as of June 22, 2016, as reported in the Issuer’s Form 10-Q filed with the SEC on May 2, 2016 and also includes 45,200,000 Common Shares issued in the Offering.

The Filers have not effected transactions in the Common Shares in open market transactions in the sixty days preceding the filing of this Amendment.

Except as set forth in Item 6 hereof, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Shares, Preferred Shares or Warrants reported herein.

 

Page 8 of 9

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CUSIP No. 09069N108 (Common Stock)

 

The information in Items 4 and 6 is incorporated herein by reference.

Item 6. Contracts, Arrangement, Understandings or Relationships with Respect to Securities of the Issuer.

In connection with the Offering, pursuant to a letter dated June 10, 2016 from Shackelton to Jefferies LLC (“Jefferies”) (the “Lock-Up Agreement”), Shackelton, among other things, agreed that, subject to certain exceptions, until September 14, 2016, he will not (and will cause any immediate Family Member (as such term is defined in the Lock-Up Agreement) not to), without the prior written consent of Jefferies:

 

•

Sell or Offer to Sell (as such terms are defined in the Lock-Up Agreement) any Common Shares or Related Securities (as such term is defined in the Lock-Up Agreement) currently or hereafter owned either of record or beneficially:

 

•

enter into any Swap (as such term is defined in the Lock-Up Agreement);

 

•

make any demand for, or exercise any right with respect to, the registration under the Securities Act of 1933, as amended, of the offer and sale of any Common Shares or Related Securities, or cause to be filed a registration statement, prospectus or prospectus supplement (or an amendment or supplement thereto) with respect to any such registration; or

 

•

publicly announce any intention to do any of the foregoing.

The foregoing description of the Lockup Agreement is qualified in its entirety by reference to the Lock-Up Agreement, which is filed hereto as Exhibit 7 and incorporated herein by reference.

CCM is an investment adviser whose clients, including CCP, CCP2 and the Separate Account, have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Shares, Preferred Shares and Warrants. CC is the general partner of CCP and CCP2. Gray and Shackelton are the managers of CC and CCM.

The information in Item 4 is incorporated herein by reference.

Item 7. Exhibits

Item 7 is hereby supplemented as follows:

 

Exhibit No.		Description
7		Lock-Up Agreement between Christopher Shackelton and Jefferies LLC, as representative of the several underwriters, dated June 10, 2016.

 

Page 9 of 9

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CUSIP No. 09069N108 (Common Stock)

SIGNATURES

After reasonable inquiry and to the best of my knowledge, I certify that the information set forth in this statement is true, complete and correct.

Dated: June 22, 2016

 

COLISEUM CAPITAL MANAGEMENT, LLC						COLISEUM CAPITAL, LLC
By:		/s/ Chivonne Cassar				By:		/s/ Chivonne Cassar
		Chivonne Cassar, Attorney-in-fact						Chivonne Cassar, Attorney-in-fact
COLISEUM CAPITAL PARTNERS, L.P.						COLISEUM CAPITAL PARTNERS II, L.P.
By:		Coliseum Capital, LLC, General Partner				By:		Coliseum Capital, LLC, General Partner
By:		/s/ Chivonne Cassar				By:		/s/ Chivonne Cassar
		Chivonne Cassar, Attorney-in-fact						Chivonne Cassar, Attorney-in-fact
CHRISTOPHER SHACKELTON						ADAM GRAY
By:		/s/ Chivonne Cassar				By:		/s/ Chivonne Cassar
		Chivonne Cassar, Attorney-in-fact						Chivonne Cassar, Attorney-in-fact

CUSIP No. 09069N108 (Common Stock)

Exhibit 7

Lock-Up Agreement

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CUSIP No. 09069N108 (Common Stock)

 

June 10, 2016

Jefferies LLC

As Representative of the Several Underwriters

c/o Jefferies LLC

520 Madison Avenue

New York, New York 10022

 

RE:	BioScrip, Inc. (the “Company”)

Ladies & Gentlemen:

The undersigned is an officer or director of the Company or an owner of shares of common stock, par value $0.0001 per share, of the Company (“Shares”) or of securities convertible into or exchangeable or exercisable for Shares. The Company proposes to conduct a public offering of Shares (the “Offering”) for which Jefferies LLC (“Jefferies”) will act as the representative of the underwriters. The undersigned recognizes that the Offering will benefit each of the Company and the undersigned. The undersigned acknowledges that the underwriters are relying on the representations and agreements of the undersigned contained in this letter agreement in conducting the Offering and, at a subsequent date, in entering into an underwriting agreement (the “Underwriting Agreement”) and other underwriting arrangements with the Company with respect to the Offering.

Annex A sets forth definitions for capitalized terms used in this letter agreement that are not defined in the body of this agreement. Those definitions are a part of this agreement.

In consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees that, during the Lock-up Period, the undersigned will not (and will cause any immediate Family Member not to), without the prior written consent of Jefferies, which may withhold its consent in its sole discretion:

 

•

Sell or Offer to Sell any Shares or Related Securities currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under the Exchange Act) by the undersigned or such Family Member,

 

•

enter into any Swap,

 

•

make any demand for, or exercise any right with respect to, the registration under the Securities Act of the offer and sale of any Shares or Related Securities, or cause to be filed a registration statement, prospectus or prospectus supplement (or an amendment or supplement thereto) with respect to any such registration, or

 

•

publicly announce any intention to do any of the foregoing.

The foregoing will not apply to the registration of the offer and sale of the Shares, and the sale of the Shares to the underwriters, in each case as contemplated by the Underwriting Agreement. In addition, the foregoing restrictions shall not apply to (a) any distribution of Shares or any security convertible into Shares to limited partners, members or stockholders of the undersigned or to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned; (b) the exercise, conversion or exchange of any Related Securities outstanding on the date hereof as described in the Registration Statement, including any exercise effected by the delivery or sale of any Shares held by the undersigned to the Company (including, without limitation, to finance a “cashless” exercise, to satisfying tax withholding obligations or to exchange “underwater” options with the Company); (c) the establishment of a trading plan pursuant to Rule 10b5-l under the Exchange Act, for the transfer of Shares or Related Securities, provided that such plan does not provide for the transfer of Shares or Related Securities during the Lock-up Period, (d) transactions relating to Shares or Related Securities acquired in open market transactions after the completion of the Offering or (e) the transfer of Shares or Related Securities (i) by gift, or by will or by intestate succession to a Family Member or (ii) to a trust whose beneficiaries consist exclusively of one or more of the undersigned and/or a Family Member; provided, however, that in any such case, it shall be a condition to such transfer that:

 

2

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CUSIP No. 09069N108 (Common Stock)

 

•

each transferee executes and delivers to Jefferies an agreement in form and substance satisfactory to Jefferies stating that such transferee is receiving and holding such Shares and/or Related Securities subject to the provisions of this letter agreement and agrees not to Sell or Offer to Sell such Shares and/or Related Securities, engage in any Swap or engage in any other activities restricted under this letter agreement except in accordance with this letter agreement (as if such transferee had been an original signatory hereto), and

 

•

prior to the expiration of the Lock-up Period, no public disclosure or filing under the Exchange Act by any party to the transfer (donor, donee, transferor or transferee) shall be required, or made voluntarily, reporting a reduction in beneficial ownership of Shares in connection with such transfer, except that in the case of (c) above, to the extent a public announcement or filing under the Exchange Act, if any, is required of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Shares or Related Securities may be made under such plan during the Lock-up Period.

The undersigned acknowledges and agrees that written notice by Jefferies to the Company of any extension of the 90-day initial lock-up period will be deemed to have been given to, and received by, the undersigned. If the initial lock-up period is so extended, the undersigned further agrees that, prior to engaging in any transaction or taking any other action that would be prohibited by this letter agreement during the period from the date of this letter agreement through the close of trading on the date that is the 34th day following the expiration of the 90-day initial lock-up period, the undersigned will give notice thereof to the Company and will not consummate any such transaction or take any such action unless the undersigned has received written confirmation from the Company that the Lock-Up Period has expired.

The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of Shares or Related Securities held by the undersigned and the undersigned’s immediate Family Members, if any, except in compliance with the foregoing restrictions.

Whether or not the Offering occurs as currently contemplated or at all depends on market conditions and other factors. The Offering will only be made pursuant to the Underwriting Agreement, the terms of which are subject to negotiation between the Company and you.

The undersigned hereby represents and warrants that the undersigned has full power, capacity and authority to enter into this letter agreement. This letter agreement is irrevocable and will be binding on the undersigned and the successors, heirs, personal representatives and assigns of the undersigned.

This letter agreement shall be governed by, and construed in accordance with, the laws of the State of New York. This Agreement shall lapse and become null and void (a) if the Offering shall not have occurred on or before the earliest of (i) such time as Jefferies advises the Company in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Offering, (ii) such time as the Company advises Jefferies in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Offering, (iii) a public announcement is made by the Company or Jefferies, prior to the execution of the Underwriting Agreement, stating that it has or they have, as applicable, determined not to proceed with the Offering, (iv) termination of the Underwriting Agreement or (v) on June 30, 2016, in the event the Underwriting Agreement has not been executed by that date.

[Signature Page Follows]

 

3

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CUSIP No. 09069N108 (Common Stock)

 

/s/ Christopher Shackelton

Signature

Christopher Shackelton

Printed Name of Person Signing

(Indicate capacity of person signing if signing as custodian or trustee, or on behalf of an entity)

[Signature Page to Lock-Up Agreement]

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CUSIP No. 09069N108 (Common Stock)

 

CERTAIN DEFINED TERMS

USED IN LOCK-UP AGREEMENT

For purposes of the letter agreement to which this Annex A is attached and of which it is made a part:

 

•

“Call Equivalent Position” shall have the meaning set forth in Rule 16a-1(b) under the Exchange Act.

 

•

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

•

“Family Member” shall mean the spouse of the undersigned, an immediate family member of the undersigned or an immediate family member of the undersigned’s spouse, in each case living in the undersigned’s household or whose principal residence is the undersigned’s household. “Immediate family member” as used above shall have the meaning set forth in Rule 16a-1(e) under the Exchange Act and the term “Family Member” shall only apply to the undersigned if such individual is executing this letter agreement on his or her own behalf and not on the behalf of an entity for which such individual is employed.

 

•

“Lock-up Period” shall mean the period beginning on the date hereof and continuing through the close of trading on the date that is 90 days after the date of the Prospectus (as defined in the Underwriting Agreement).

 

•

“Put Equivalent Position” shall have the meaning set forth in Rule 16a-1(h) under the Exchange Act.

 

•

“Related Securities” shall mean any options or warrants or other rights to acquire Shares or any securities exchangeable or exercisable for or convertible into Shares, or to acquire other securities or rights ultimately exchangeable or exercisable for or convertible into Shares.

 

•

“Securities Act” shall mean the Securities Act of 1933, as amended.

 

•

“Sell or Offer to Sell” shall mean to:

 

•

sell, offer to sell, contract to sell or lend,

 

•

effect any short sale or establish or increase a Put Equivalent Position or liquidate or decrease any Call Equivalent Position

 

•

pledge, hypothecate or grant any security interest in, or

 

•

in any other way transfer or dispose of,

in each case whether effected directly or indirectly.

 

•

“Swap” shall mean any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the economic risk of ownership of Shares or Related Securities, regardless of whether any such transaction is to be settled in securities, in cash or otherwise.

Capitalized terms not defined in this Annex A shall have the meanings given to them in the body of this lock-up agreement.

 

5