Securities Registration: Employee Benefit Plan (s-8)
March 13 2017 - 5:03AM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on March 10, 2017
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)
Delaware
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05-0489664
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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1600 Broadway, Suite 700, Denver, Colorado
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80202
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(Address of Principal Executive Offices)
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(Zip Code)
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BioScrip, Inc. Amended and Restated 2008
Equity Incentive Plan
(Full Title of the Plan)
Kathryn M. Stalmack, Esq.
Senior Vice President, Secretary and General Counsel
BioScrip, Inc.
1600 Broadway, Suite 700
Denver, Colorado 80202
(Name and address of agent for service)
(720) 697-5200
(Telephone number, including area code, of
agent for service)
Copies to:
Scott M. Zimmerman, Esq.
Dechert LLP
1095 6
th
Ave
New York, NY 10036
(212) 698 3613 (phone)
(212) 698 3599 (fax)
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
þ
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Accelerated Filer
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Non-Accelerated Filer
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Smaller Reporting Company
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(Do not check if a smaller
reporting company)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered
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Amount to
be
Registered(1)
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Proposed
Maximum
Offering
Price Per
Share(2)
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Proposed
Maximum
Aggregate
Offering
Price(2)
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Amount of
Registration
Fee.(2)
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Common stock, par value $0.0001 per share
(“Common Stock”)
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5,250,000
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$
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1.98
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$
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10,395,000
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$
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1,204.78
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(1)
Represents additional shares
of Common Stock reserved for issuance under the BioScrip, Inc. Amended and Restated 2008 Equity Incentive Plan. 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. No additional registration fee is included for these shares.
(2) The proposed maximum aggregate
offering price of the Common Stock was calculated based upon the market value for shares of the Common Stock in accordance with
Rule 457(c) and (h) under the Securities Act using the average of the high and low sales prices per share reported on the
NASDAQ Global Market on March 9, 2017.
EXPLANATORY NOTE
We are filing this Registration Statement on Form S-8 (this “Registration
Statement”) to register an additional 5,250,000 shares of Common Stock for issuance under the BioScrip, Inc. 2008 Equity
Incentive Plan (as amended and restated, the “2008 Plan”). The increase in the number of shares of Common Stock authorized
for issuance under the 2008 Plan, as well as certain other amendments to the 2008 Plan that are described in our definitive proxy
materials for our Special Meeting of Stockholders held on November 30, 2016 (the “Special Meeting”), were approved
by our stockholders at the Special Meeting. Pursuant to General Instruction E to Form S-8, the contents of the earlier registration
statements related to the 2008 Plan on Form S-8 filed on May 16, 2008 (333-150985), August 12, 2011 (File No. 333-176291) and September
19, 2014 (File No. 333-198849) are incorporated herein by reference except to the extent supplemented, amended or superseded by
the information set forth herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Securities and Exchange Commission (the
“SEC”) allows us to incorporate by reference the information that we disclose in our filings with the SEC into this
Registration Statement. Incorporation by reference means we can disclose information to you by referring you to those documents.
The information incorporated by reference is considered to be part of this prospectus, and later information that we file with
the SEC will automatically update and supersede this information. This Registration Statement incorporates by reference the following
documents that we have previously filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”):
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·
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Annual Report on Form 10-K for the fiscal year ended December 31, 2016, as amended, including the portions of our definitive proxy statement for our 2017 Annual Meeting of Stockholders incorporated by reference therein; and
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·
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the description of the Common Stock included in our registration statements on Form 8-A/A filed with the SEC on August 1, 1996, December 4, 2002, December 14, 2006 and March 4, 2009 and any amendment or report we may file with the SEC for the purpose of updating such description.
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We are also incorporating by reference all
documents we file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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, other than any portion of the respective filings
furnished, rather than filed, under the applicable SEC rules. The additional information incorporated by reference is a part of
this Registration Statement from the date of filing of those documents.
Any statement contained in this Registration Statement or a document
incorporated or deemed to be incorporated by reference into this Registration Statement shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other
subsequently filed document, which is also incorporated or deemed to be incorporated into this Registration Statement, modifies
or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded. To the extent that any proxy statement is incorporated by reference herein, such
incorporation shall not include any information contained in such proxy statement which is not, pursuant to the SEC’s rules,
deemed to be “filed” with the SEC or subject to the liabilities of Section 18 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Kathryn M. Stalmack, our Senior Vice President, Secretary and
General Counsel, has passed upon certain legal matters in connection with the registration of the additional authorized
shares of Common Stock offered hereby under the 2008 Plan. As of the date hereof, Ms. Stalmack beneficially owns an
aggregate of less than one percent of the outstanding shares of Common Stock.
ITEM 8. EXHIBITS.
The exhibits to this Registration Statement are listed in the Exhibit
Index that immediately precedes such exhibits and is incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant 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 Denver, State of Colorado, on the 10th day of March, 2017.
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BIOSCRIP, INC.
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By:
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/s/ Kathryn M. Stalmack
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Name:
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Kathryn M. Stalmack
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Title:
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Senior Vice President, Secretary and General Counsel
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Each of the undersigned whose signature appears
below hereby constitutes and appoints Daniel Greenleaf and Kathryn M. Stalmack and each of them acting alone, the individual’s
true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for the person and in his or
her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this
Registration Statement, and any Registration Statement relating to the offering covered by this registration statement and filed
pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, under the Securities Act of 1933, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to
be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that
each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on
March 10, 2017.
Signature
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Title(s)
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/s/ Daniel Greenleaf
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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Daniel Greenleaf
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/s/ Jeffrey M. Kreger
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Senior Vice President, Chief Financial Officer and Treasurer
(Principal Financial Officer)
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Jeffrey M. Kreger
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/s/ C. Britt Jeffcoat
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Vice President, Controller and Chief Accounting Officer
(Principal Accounting Officer)
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C. Britt Jeffcoat
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/s/ R. Carter Pate
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Chairman of the Board and Director
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R. Carter Pate
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/s/ Michael G. Bronfein
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Director
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Michael G. Bronfein
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/s/ David W. Golding
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Director
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David W. Golding
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/s/ Michael Goldstein
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Director
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Michael Goldstein
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/s/ Steven Neumann
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Director
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Steven Neumann
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/s/ Tricia Huong Thi Nguyen
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Director
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Tricia Huong Thi Nguyen
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/s/ Christopher Shackelton
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Director
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Christopher Shackelton
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EXHIBIT INDEX
Exhibit No.
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Exhibit Description
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5.1*
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Opinion of General Counsel of BioScrip, Inc.
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10.1
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BioScrip, Inc. Amended and Restated 2008 Equity Incentive Plan, incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on May 14, 2014, SEC File Number 000-28740.
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10.2
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Amendment to BioScrip, Inc. Amended and Restated 2008 Equity Incentive Plan, incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on June 2, 2016, SEC File Number 000-28740.
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10.3
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Second Amendment to Amended and Restated 2008 Equity Incentive Plan, incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on December 2, 2016, SEC File Number 000-28740.
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23.1*
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Consent of KPMG LLP.
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23.2*
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Consent of Kathryn M. Stalmack (included as part of Exhibit 5.1 of this Registration Statement).
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24.1*
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Powers of Attorney (included on signature page of this Registration Statement).
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*
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Filed herewith.
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