OPCH Option Care Health Inc

 

As filed with the Securities and Exchange Commission on July 31, 2024

 

Registration No. 333-________

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

OPTION CARE HEALTH, INC.

(Exact name of registrant as specified in its charter)

 

Delaware		05-0489664
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

3000 Lakeside Dr., Suite 300N

Bannockburn, IL 60015

(Address of Principal Executive Offices, including zip code)

 

Option Care Health, Inc. Amended and Restated 2018 Equity Incentive Plan

(Full title of the Plans)

 

Collin G. Smyser

General Counsel and Corporate Secretary

Option Care Health, Inc.

3000 Lakeside Dr. Suite 300N

Bannockburn, IL 60015

(Name and address of agent for service)

 

(312) 940-2443

(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, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer	x		Accelerated filer	¨
Non-accelerated filer	¨		Smaller reporting company	¨
			Emerging growth company	¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨

 

 

 

EXPLANATORY NOTE

 

The stockholders of Option Care Health, Inc. (the “Registrant”) approved the Option Care Health, Inc. Amended and Restated 2018 Equity Incentive Plan (as amended and restated, the “Amended and Restated Plan”) on May 15, 2024 (the “Effective Date”).

 

This Registration Statement on Form S-8 is being filed with the Securities and Exchange Commission (the “Commission”) for the purpose of registering an additional 4,000,000 shares of common stock, par value $0.0001 per share, of the Registrant (the “Common Stock”) for issuance pursuant to the Amended and Restated Plan as of the Effective Date.

 

PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The information called for in Part I of Form S-8 is not being filed with or included in this Registration Statement (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Commission.

 

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents, which have been filed with the Commission by the Registrant, pursuant to the Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, are hereby incorporated by reference in, and shall be deemed to be a part of, this Registration Statement:

 

(a)

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 (the “2023 Annual Report”), which incorporates by reference certain portions of the Registrant’s definitive proxy statement for the Registrant’s 2024 Annual Meeting of Stockholders filed on April 3, 2024, incorporated by reference in the 2023 Annual Report;

 

(b)

The Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2024 and for the fiscal quarter ended June 30, 2024;

 

(c)

The Registrant’s Current Reports on Form 8-K filed on May 10, 2024 and May 17, 2024; and

 

(d)

The description of the Registrant’s Common Stock, included in Exhibit 4.12 to Registrant’s Form 10-K for the year ended December 31, 2020, including any amendment or report filed for the purpose of updating such description.

 

In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act after the date of this Registration Statement and before the filing of a post-effective amendment that indicates that all shares of Common Stock offered have been sold, or that deregisters all shares of Common Stock then remaining unsold, shall be deemed to be incorporated by reference in, and to be a part of, this Registration Statement from the date of filing of those 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 incorporated herein by reference or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

 

Notwithstanding the foregoing, nothing in this Registration Statement shall be deemed to incorporate any information from Item 2.02 or Item 7.01 of any Form 8-K, or that is otherwise furnished under applicable Commission rules rather than filed, or any exhibits to the extent furnished in connection with such items.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

Section 102 of the General Corporation Law of the State of Delaware (the “DGCL”) allows a corporation to eliminate the personal liability of directors and certain officers to a corporation or its stockholders for monetary damages for a breach of a fiduciary duty as a director or officer, except where the director or officer breached their duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law or obtained an improper personal benefit or where the director authorized the payment of a dividend or approved a stock repurchase or redemption in violation of Delaware corporate law.

 

Section 145 of the DGCL empowers a Delaware corporation to 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, administrative or investigative (other than an action by or in the right of such corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner such person 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 such person’s conduct was unlawful. A Delaware corporation may indemnify directors, officers, employees and other agents of such corporation in an action by or in the right of a corporation under the same conditions against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense and settlement of such action or suit, except that no indemnification is permitted without judicial approval if the person to be indemnified has been adjudged to be liable to the corporation. Where a present or former director or officer of the corporation is successful on the merits or otherwise in the defense of any action, suit or proceeding referred to above or in defense of any claim, issue or matter therein, the corporation must indemnify such person against the expenses (including attorneys’ fees) which he or she actually and reasonably incurred in connection therewith.

 

Section 174 of the DGCL provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time, may avoid liability by causing their dissent to such actions to be entered into the books containing the minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.

 

The Registrant’s bylaws provide that 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, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Registrant, or is or was serving while a director or officer of the Registrant at the request of the Registrant as a director, officer, employee, agent, fiduciary or other representative of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall be indemnified by the Registrant against expenses (including attorneys’ fees), judgments, fines, excise taxes and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding to the full extent permissible under Delaware law.

 

 

In addition, the Registrant’s bylaws provide that the Registrant shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee, agent, fiduciary or other representative of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability asserted against them and incurred by them in any such capacity, or arising out of their status as such, whether or not the Registrant would have the power to indemnify them against such liability under the provisions of the bylaws.

 

The Registrant currently maintains directors and officers liability insurance.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit No.		Description
3.1		Third Amended and Restated Certificate of Incorporation of BioScrip, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on August 7, 2019).
3.2		Certificate of Amendment to Certificate of Incorporation, amending the Third Amended and Restated Certificate of Incorporation of BioScrip, Inc. (incorporated by reference to Exhibit 3.3 to the Registrant’s Current Report on Form 8-K filed on August 7, 2019).
3.3		Certificate of Amendment of the Certificate of Incorporation, filed January 30, 2020 (incorporated by reference to Exhibit 3.4 to the Registrant’s Annual Report on Form 10-K filed on March 11, 2021).
3.4		Fourth Amended and Restated By-Laws of Option Care Health, Inc., effective as of December 6, 2023 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on December 11, 2023).
5.1		Opinion of Faegre Drinker Biddle & Reath LLP.
10.1		Option Care Health, Inc. Amended and Restated 2018 Equity Incentive Plan (incorporated by reference to Appendix B to the Registrant’s Definitive Proxy Statement for the 2024 Annual Meeting of Stockholders filed on April 3, 2024).
23.1		Consent of KPMG LLP, Independent Registered Public Accounting Firm.
23.2		Consent of Faegre Drinker Biddle & Reath LLP (included in Exhibit 5.1).
24.1		Powers of Attorney (included on the Signature Page of this Registration Statement).
107		Filing Fee Table.

 

Item 9. Undertakings.

 

(a)            The undersigned 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 of 1933;

 

(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 Securities and Exchange 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; and

 

 

(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) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.

 

(2)            That, for the purpose of determining any liability under the Securities Act of 1933, 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 a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b)            The undersigned 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 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 Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

 

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 Bannockburn, State of Illinois, on July 31, 2024.

 

	OPTION CARE HEALTH, INC.
	By:	/s/ John C. Rademacher
		John C. Rademacher
		Chief Executive Officer and President

 

SIGNATURES AND POWER OF ATTORNEY

 

We, the undersigned officers and directors of Option Care Health, Inc., hereby severally constitute and appoint John C. Rademacher, Michael Shapiro and Collin Smyser, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement (or any other registration statement for the same offering that is to be effective upon filing 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, 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 or necessary to be done in and about the premises, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Signature		Title		Date
/s/ John C. Rademacher		Chief Executive Officer, President and Director		July 31, 2024
John C. Rademacher		(Principal Executive Officer)
/s/ Michael Shapiro		Chief Financial Officer and Executive Vice President		July 31, 2024
Michael Shapiro		(Principal Financial Officer and Principal Accounting Officer)
/s/ Harry M. Jansen Kraemer, Jr.		Non-Executive Chairman of the Board		July 31, 2024
Harry M. Jansen Kraemer, Jr.
/s/ John J. Arlotta		Director		July 31, 2024
John J. Arlotta
/s/ Elizabeth D. Bierbower		Director		July 31, 2024
Elizabeth D. Bierbower
/s/ Elizabeth Q. Betten		Director		July 31, 2024
Elizabeth Q. Betten
/s/ Barbara W. Bodem		Director		July 31, 2024
Barbara W. Bodem
/s/ Eric K. Brandt		Director		July 31, 2024
Eric K. Brandt
/s/ Natasha Deckmann		Director		July 31, 2024
Natasha Deckmann
/s/ David W. Golding		Director		July 31, 2024
David W. Golding
/s/ R. Carter Pate		Director		July 31, 2024
R. Carter Pate
/s/ Timothy P. Sullivan		Director		July 31, 2024
Timothy P. Sullivan
/s/ Norman L. Wright		Director		July 31, 2024
Norman L. Wright

 

 

 

Exhibit 5.1

 

Faegre Drinker Biddle & Reath LLP

2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402

+1 612 766 7000 main

+1 612 766 1600 fax

 

July 31, 2024

 

Option Care Health, Inc.
3000 Lakeside Dr., Suite 300N
Bannockburn, IL 60015

 

Re: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Option Care Health, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of the Company’s Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), registering the offer and sale of up to 4,000,000 additional shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), pursuant to the Option Care Health, Inc. Amended and Restated 2018 Equity Incentive Plan (the “Amended and Restated Plan”).

 

For purposes of this opinion letter, we have examined the Amended and Restated Plan, the Registration Statement, the amended and restated certificate of incorporation, as currently in effect, and the amended and restated bylaws, as currently in effect, of the Company, the resolutions of the Company’s board of directors authorizing the issuance of the Shares and such corporate and other records, agreements, instruments, certificates of public officials and documents as we have deemed necessary as a basis for the opinions hereinafter expressed and have made such examination of statutes as we have deemed relevant and necessary in connection with the opinions hereinafter expressed. As to facts material to this opinion letter, we have relied upon certificates, statements or representations of public officials, of officers and representatives of the Company and of others, without any independent verification thereof.

 

In our examination, we have assumed: (i) the legal capacity of all natural persons; (ii) the genuineness of all signatures; (iii) the authenticity of all documents submitted to us as originals; (iv) the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies; (v) the authenticity of the originals of such latter documents; (vi) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments, certificates and records we have reviewed; and (vii) the absence of any undisclosed modifications to the agreements and instruments reviewed by us.

 

Based on and subject to the foregoing and to the other qualifications, assumptions and limitations set forth herein, we are of the opinion that all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of the Shares to be issued in accordance with the Amended and Restated Plan and that, when (a) the Shares have been issued and sold as contemplated in the Registration Statement and related prospectus and in accordance with the Amended and Restated Plan, and (b) the consideration for the Shares specified in the Amended and Restated Plan has been received by the Company, the Shares will be validly issued, fully paid and nonassessable.

 

We do not express any opinion herein with respect to the laws of any jurisdiction other than, subject to the limitations and assumptions contained herein, the General Corporation Law of the State of Delaware.

 

 

Option Care Health, Inc.

Page -2-

July 31, 2024

 

This opinion speaks only as of the date the Registration Statement becomes effective under the Act, and we assume no obligation to revise or supplement this opinion thereafter. This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

 

Yours very truly,

 

FAEGRE DRINKER BIDDLE & REATH LLP
By:	/s/ Amy C. Seidel
	Amy C. Seidel

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the use of our reports dated February 22, 2024, with respect to the consolidated financial statements of Option Care Health, Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference.

 

/s/ KPMG LLP
Chicago, Illinois
July 31, 2024

 

 

v3.24.2

Submission	Jul. 31, 2024
Submission [Line Items]
Central Index Key	0001014739
Registrant Name	Option Care Health, Inc.
Form Type	S-8
Submission Type	S-8
Fee Exhibit Type	EX-FILING FEES

v3.24.2

Offerings - Offering: 1	Jul. 31, 2024 USD ($) shares
Offering:
Fee Previously Paid	false
Rule 457(a)	true
Security Type	Equity
Security Class Title	Common Stock, par value $0.0001 per share
Amount Registered | shares	4,000,000
Proposed Maximum Offering Price per Unit	31.23
Maximum Aggregate Offering Price	$ 124,920,000.00
Fee Rate	0.01476%
Amount of Registration Fee	$ 18,438.19
Offering Note	(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement shall also cover any additional shares of Common Stock that become issuable under the Option Care Health, Inc. Amended and Restated 2018 Equity Incentive Plan (as amended and restated, the "Amended and Restated Plan") by reason of any stock split, stock dividend or other similar transaction effected without the receipt of consideration which results in an increase in the number of shares of outstanding Common Stock. (2) Represents shares of Common Stock registered pursuant to the Amended and Restated Plan. (3) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h) of the Securities Act. The proposed maximum offering price per share is calculated on the basis of $31.23, the average of the high and low price of the Common Stock on July 26, 2024, as reported on the Nasdaq Global Select Market, which is within five business days prior to filing this Registration Statement.

v3.24.2

Offsets	Jul. 31, 2024 USD ($) shares
Offset: 1
Offset Payment:
Offset Claimed	true
Rule 457(p) Offset	true
Registrant or Filer Name	Option Care Health, Inc.
Form or Filing Type	S-4
File Number	333-272405
Initial Filing Date	Jun. 05, 2023
Fee Offset Claimed	$ 18,438.19
Security Type Associated with Fee Offset Claimed	Equity
Security Title Associated with Fee Offset Claimed	Common Stock, par value $0.0001 per share
Unsold Securities Associated with Fee Offset Claimed | shares	105,138,116
Unsold Aggregate Offering Amount Associated with Fee Offset Claimed	$ 292,828.84
Termination / Withdrawal Statement	The Registrant previously registered 105,138,116 shares of Common Stock pursuant to the Registration Statement on Form S-4 (File Number 333-272405) filed on June 5, 2024 (the "Prior Registration Statement"). The Registrant has withdrawn the Prior Registration Statement and no securities were sold thereunder.
Offset: 2
Offset Payment:
Offset Claimed	false
Rule 457(p) Offset	true
Registrant or Filer Name	Option Care Health, Inc.
Form or Filing Type	S-4
File Number	333-272405
Filing Date	Jun. 05, 2023
Fee Paid with Fee Offset Source	$ 292,828.84
Offset Note	The Registrant expects to offset the registration fee due hereunder by an amount of fees that was previously paid with respect to the Prior Registration Statement pursuant to Rule 457(p) under the Securities Act. The fee previously paid for the Prior Registration Statement was $292,829.00. Pursuant to Rule 457(p) under the Securities Act, all of which remains available for fee offsets by the Registrant as of the date of this Registration Statement. Pursuant to Rule 457(p) under the Securities Act, the Registrant hereby offsets the total registration fee due under this Registration Statement of $18,438.19 from the fees previously paid in connection with the Prior Registration Statement, with $274,390.65 remaining to be applied to future filings. Accordingly, no additional registration fee is being paid in connection with the filing of this Registration Statement.

v3.24.2

Fees Summary	Jul. 31, 2024 USD ($)
Fees Summary [Line Items]
Total Offering	$ 124,920,000.00
Total Fee Amount	18,438.19
Total Offset Amount	18,438.19
Net Fee	$ 0.00

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