As filed with the Securities and Exchange Commission on
July 12, 2001March 18, 2013Registration No. 333-
===============================================================================UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------- FORMForm S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------- MIM CORPORATION (ExactBioScrip, Inc.
(Exact name of registrant as specified in its charter)
Delaware 05-0489664 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) MIM Corporation
| Delaware | 05-0489664 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
100 Clearbrook Road
Elmsford, New York 10523
(914) 460-1600
(Address,
(Address, including zip code, and telephone number,including area code, of registrant'sregistrant’s principal executive offices)
Barry A. Posner
MIM Corporation
Kimberlee Seah, Esq.
Senior Vice President, Secretary and General Counsel
BioScrip, Inc.
100 Clearbrook Road,
Elmsford, New York 10523
(914) 460-1600
(Name,
(Name, address, including zip code, and telephone number,including area code, of agent for service)
Copies requested to:
Donald E. William Bates, II
King & Spalding
1185 Avenue of the Americas
New York, New York 10036
(212) 556-2100
--------------------------
Figliulo, Esq.
Polsinelli Shughart PC
161 N. Clark Street, Suite 4200
Chicago, Illinois 60601
(312) 463-6311 (phone)
(312) 893-2164 (fax)
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this formForm are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ]
¨
If any of the securities being registered on this formForm are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [x]
þ
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
¨
If delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434, please462(e) under the Securities Act, check the following box. [ ]
¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
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.
| Large Accelerated Filer ¨ | Accelerated Filer þ | Non-Accelerated Filer o | Smaller Reporting Company o |
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price per Security | Proposed Maximum Aggregate Offering Price (1)(2) | Amount of Registration Fee | ||||||||||
| Primary Offering | ||||||||||||||
| Common Stock | ||||||||||||||
| Preferred Stock(3) | ||||||||||||||
| Debt Securities(4) | ||||||||||||||
| Warrants(5) | ||||||||||||||
| Units(6) | ||||||||||||||
| Primary Offering Total | $ | 200,000,000 | $ | 27,280 | ||||||||||
| Secondary Offering | ||||||||||||||
| Common Stock | 12,682,831 | $ | 12.14 | (7) | $ | 153,969,569 | (7) | $ | 21,002 | |||||
| Common Stock underlying Outstanding Warrants | 3,400,945 | $ | 12.14 | (8) | $ | 41,287,473 | (8) | $ | 5,632 | |||||
| Secondary Offering Total | $ | 195,257,042 | $ | 26,634 | ||||||||||
| TOTAL | $ | 395,257,042 | $ | 53,914 | ||||||||||
| (1) | Such amount as shall result in an aggregate public offering price of |
| (2) | Estimated solely for the purpose of calculating the registration fee |
| (3) | There is being registered hereunder an indeterminate number of shares of preferred stock as may from time to time be sold at indeterminate prices not to exceed the aggregate offering price of $200,000,000 for all securities sold by BioScrip, Inc. pursuant to this registration statement. |
| (4) | If any debt securities are issued at an original issue discount, then the offering may be in such greater principal amount as shall result in a maximum aggregate offering price not to exceed the aggregate offering price of $200,000,000 for all securities sold by BioScrip, Inc. pursuant to this registration statement. |
| (5) | There is being registered hereunder an indeterminate number of warrants as may from time to time be sold at indeterminate prices not to exceed the aggregate offering price of $200,000,000 for all securities sold by BioScrip, Inc. pursuant to this registration statement. |
| (6) | There is being registered hereunder an indeterminate number of units as may from time to time be sold at indeterminate prices not to exceed the aggregate offering price of $200,000,000 for all securities sold by BioScrip, Inc. pursuant to this registration statement.Each unit will be issued under a unit agreement and will represent an interest in two or more other securitiesregistered hereunder, which may or may not be separable from one another. |
| (7) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities Act, based upon the average of the high and low sales prices on the NASDAQ Global Market on March 12, 2013 of the shares of common stock of the Registrant. |
| (8) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(g) of the Securities Act. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a), may determine.
===================================================================================================================================
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Subject to Completion, Dated July 12, 2001
PROSPECTUS
MIM CORPORATION
---------------------------
2,697,947 Shares of Common Stock
(par value $.0001 per Share)
---------------------------
This prospectus relates to the offering from time to time of up to
2,697,947 shares of common stock of MIM Corporation by one of our stockholders.
We will not receive any of the proceeds fromSecurities Act of 1933 or until the sale ofRegistration Statement shall become effective on such date as the shares being
offered. We are registering these shares, but the registration of such shares
does not necessarily mean that any of such shares will be offered or sold by the
selling stockholder.
The selling stockholder from timeSecurities and Exchange Commission, acting pursuant to timesaid Section 8(a), may offer and sell the
shares directly to purchasers or through agents, underwriters or dealers on
terms to be determined at the time of sale. If required, the names of any
agents, underwriters or dealers and any other required information will be set
forth in an accompanying prospectus supplement.
The common stock is listed on the Nasdaq National Market under the
symbol "MIMS." On July 11, 2001, the last sale price of our common stock as
reported on the Nasdaq National Market was $6.11 per share.
Investing in the common stock involves certain risks. See "Risk
Factors" beginning on page 3 for a discussion of these risks.
determine.
The information in this prospectus is not complete and may be changed. The selling stockholderWe may not sell these securities untilsecuritiesuntil the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy or sell these securities in any statejurisdiction where the offer or sale is not permitted.
---------------------------
SUBJECT TO COMPLETION, DATED MARCH 18, 2013
BioScrip, Inc.
$200,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
Up to 12,682,831 Shares of Common Stock and
up to 3,400,945 Shares of Common Stock underlying our Warrants
Offered by Selling Stockholders
Through this prospectus, we may offer and sell, from time to time, in one or more offerings, together or separately:
(1) common stock;
(2) preferred stock;
(3) debt securities;
(4) warrants; and
(5) units.
This prospectus describes some of the general terms that may apply to an offering of our securities. The specific terms of the securities and their offering prices will be determined at the time of their offering will be described in one or more supplements to this prospectus. The prospectus supplements may also add, update or change information contained in this prospectus.You should read this prospectus and the applicable prospectus supplement carefully before you decide to invest in any of these securities.The aggregate public offering price of all securities issued by us under this prospectus may not exceed $200.0 million.
In addition, selling stockholders to be named in a prospectus supplement may sell in one or more offerings from time to time pursuant to this prospectus (i) up to an aggregate of 12,682,831 shares of our common stock, and (ii) up to an aggregate of 3,400,945 shares of our common stock issuable upon the exercise of our outstanding warrants. The selling stockholders may sell any or all of their securities registered under this prospectus through underwriters, dealers and agents or directly to purchasers on any stock exchange, market or trading facility on which the shares are traded or in privately negotiated transactions at fixed prices that may be changed, at market prices prevailing at the time of sale or at negotiated prices. Information on these selling stockholders and the times and manner in which they may offer and sell their securities registered under this prospectus is described under the sections titled “Selling Stockholders” and “Plan of Distribution” in this prospectus. We will not receive any of the proceeds from the sale of such securities, although we will receive the proceeds from the exercise of our outstanding warrants if they are not exercised on a cashless basis.
Our common stock, par value $0.0001 per share, is traded on the NASDAQ Global Market under the symbol “BIOS.” On March 15, 2013, the last reported sale price of our common stock was $12.76 per share.
Our securities may be offered directly by us or the selling stockholders, through agents designated from time to time by us or the selling stockholders, or to or through underwriters ordealers. If any agents, underwriters or dealers are involved in the sale of any of our securities, their names, and any applicablepurchase price, fee, commission or discount arrangement between or among them, will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. None of our securities may be sold without delivery of the applicable prospectus supplement describing the method and terms of the offering of those securities.
Investing in our securities involves significant risks. See “Risk Factors” on page 1 of this prospectus, in our most recent Annual Report on Form 10-K and in any applicable prospectus supplement.You should read this prospectus, any accompanying prospectus supplement, and the documents incorporated by reference herein and therein carefully before you make your investment decision.
_________________________
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
---------------------------
The date of this
_________________________
This prospectus is July 12, 2001.
TABLE OF CONTENTS
Page
About This Prospectus................................................. 1
Where You Can Find More Information................................... 1
MIM Corporation....................................................... 3
Risk Factors.......................................................... 3
Special Note Regarding Forward-Looking Statements..................... 9
Use of Proceeds....................................................... 10
Selling Stockholder................................................... 10
Plan of Distribution.................................................. 10
Validity of Common Stock.............................................. 12
Experts............................................................... 12
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, using a "shelf"“shelf” registration process. Under this shelf process, oneThis prospectus provides a general description of our stockholders, whichthe securities we refer to asand the selling stockholders may offer. Each time we or any selling stockholder sell securities, we will provide a prospectus supplement and, if applicable, a pricing supplement, containing specific information about the terms of the securities being offered and the manner in which they may sell upbe offered. The prospectus supplement may include a discussion of any risk factors or other special considerations that apply to an aggregate of 2,697,947 shares of
common stockthose securities. The prospectus supplement and any pricing supplement may also add to, update or change the information in one or more offerings.this prospectus. If there is any inconsistency between the information in this prospectus and in a prospectus supplement, you should rely on the information in that prospectus supplement. You should read thisthe entire prospectus, the prospectus supplement and any applicable prospectuspricing supplement provided to you together with the additional information described under the heading "Where“Where You Can Find More Information."
The registration statement that contains this prospectus (including
the exhibits to the registration statement) contains additional information
about our company and the securities offered under this prospectus. That
registration statement can be read at the SEC web site or at the SEC offices
mentioned under the heading "Where Information” before making an investment decision.
You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549. You can also obtain copies of the
documents at prescribed rates by writing to the Public Reference Section of the
SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further informationshould rely only on the operation of the public reference
facilities. Our SEC filings are also available at the office of the Nasdaq
National Market, Inc. at 1735 K Street, N.W., Washington, D.C. 20006-1506.
The SEC allows us to incorporate by reference intoinformation provided in this prospectus, the information that we file with the SEC, which means that we disclose
important information to you by referring to these documents and the information
contained therein. Therelated prospectus supplement, including any information incorporated by reference, and any pricing supplement. No one is authorized to provide you with information different from that which is contained, or deemed to be contained, in the prospectus, the related prospectus supplement and any pricing supplement. We and the selling stockholders are not making offers to sell securities in any jurisdiction in which an important
part ofoffer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should not assume that the information in this prospectus, any prospectus supplement or any document incorporated by reference is accurate as of any date other than the date of the document in which the information is contained or other date referred to in that document, regardless of the time of sale or issuance of any security.
Unless otherwise specified or unless the context requires otherwise, all references in this prospectus to “BioScrip,”the “Company,” “we,” “us,” “our” or similar references meanBioScrip, Inc. and its subsidiaries on a consolidated basis.
You should carefully consider the accompanyingspecific risks described in our Annual Report on Form 10-K for our fiscal year ended December 31, 2012, the risk factors described under the caption “Risk Factors” in any applicable prospectus supplement. In addition,supplement, and any information that we filerisk factors set forth in our other filings with the SEC subsequentpursuant to the date of this
prospectus will automatically update this prospectus. We incorporate by
reference the documents listed below and any filings that we make with the SEC
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under sectionsSections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, afteras amended, or the initial filingExchange Act, incorporated herein by this reference, before making an investment decision. See “Where You Can Find More Information.”
WHERE YOU CAN FIND MORE INFORMATION
Available Information
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any of this information at the registration statementSEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at (800) SEC-0330 or (202) 942-8090 for further information on the public reference room. The SEC also maintains an Internet website that contains this
prospectusreports, proxy statements and prior toother information regarding issuers, including us, who file electronically with the timeSEC. The address of that site iswww.sec.gov.The information contained on the selling stockholder sells all of the
common stock offered by this prospectus:
o Annual Report on Form 10-K for fiscal year ended December 31, 2000.
o Quarterly Report on Form 10-Q for the period ended March 31, 2001.
o The description of the common stock included in our Registration
Statement on Form 8-A/A dated May 20, 1999.
You may request a copy of these filings (other than an exhibit to a
filing unless that exhibitSEC’s website is specificallyexpressly not incorporated by reference into this prospectus.
We also maintain an Internet website at http://bioscrip.com, which provides additional information about us through which you can also access our SEC filings. The information set forth on, or connected to, our website is expressly not incorporated by reference into, and does not constitute a part of, this prospectus.
This prospectus contains summaries of provisions contained in some of the documents discussed in this prospectus, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to in this prospectus have been filed or will be filed or incorporated by reference as exhibits to the registration statement of which this prospectusformsa part. If any contract, agreement or other document is filed or incorporated by reference as an exhibit to the registration statement, you should read the exhibit for a more complete understanding of the document or matter involved. Do not rely on or assume the accuracy of any representation or warranty in any agreement that filing) atwe have filed or incorporated by reference as an exhibit to the registration statement because such representation or warranty may be subject to exceptions and qualifications contained in separate disclosure schedules, may have been included in such agreement for the purpose of allocating risk between the parties to the particular transaction, and may no cost,longer continue to be true as of any given date.
Incorporation of Documents by writingReference
The SEC allows us to incorporate by reference information into this prospectus. This means we can disclose information to you by referring you to another document we filed with the SEC. We will make those documents available to you without charge upon your oral or telephoning us at the following address:
MIM Corporationwritten request. Requests for those documents should be directed to BioScrip, Inc., 100 Clearbrook Road, Elmsford, New York 10523, Attention: Corporate Secretary, telephone: (914) 460-1600
Attn: General Counsel
You should only rely on the information incorporated460-1600. This prospectus incorporates by reference the following documents that we have filed with the SEC but have not included or set forthdelivered with this prospectus:
| · | Annual report on Form 10-K for the fiscal year ended December 31, 2012 filed on March 15, 2013; |
| · | portions of our definitive proxy statement on Schedule 14A that are deemed “filed” with the SEC under the Exchange Act, filed on March 29, 2012; and |
| · | the description of our common stock included in our amended registration statements on Form 8-A/A filed on August 1, 1996, December 4, 2002, December 14, 2006, March 4, 2009 and any amendment or report we may file with the SEC for the purpose of updating such description. |
We are also incorporating by reference additional documents we may file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus until the offering of the particular securities covered by a prospectus supplement has been completed, other than any portion of the respective filings furnished, rather than filed, under the applicable SEC rules.
This additional information is a part of this prospectus from the date of filing of those documents.
Any statements made in this prospectus or any applicablein a document incorporated or deemed to be incorporated by reference into this prospectus supplement. We have
not authorized anyone elsewill be deemed to provide you with different information. We are
only offering these securities in states wherebe modified or superseded for purposes of this prospectus to the offer is permitted. You
should not assumeextent that the informationa statement contained in this prospectus or in any other subsequently filed document, which is also incorporated or deemed to be incorporated into this prospectus, modifies or supersedes the applicablestatement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
The information relating to us contained in this prospectus should be read together with the information in the documents incorporated by reference.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, the accompanying prospectus supplement is accurate as of any date other thanand the dates on the
front of such documents.
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MIM CORPORATION
We are a pharmacy benefit management, specialty pharmaceutical and
fulfillment/e-commerce organization that partners with healthcare providers and
sponsors to control prescription drug costs. Our pharmacy benefit products and
services use clinically sound guidelines to ensure cost control and quality
care. Our specialty pharmaceutical division specializes in serving the
chronically ill afflicted with life threatening diseases and genetic
impairments. Our fulfillment and e-commerce pharmacy specializes in serving
individuals that require long-term maintenance medications. Our online pharmacy,
www.MIMRx.com, develops private label websites to offer affinity groups and
healthcare providers innovative and customized health information services and
products on the Internet for the benefit of their members.
We are incorporated under the laws of the State of Delaware. Our
principal executive offices are located at 100 Clearbrook Road, Elmsford, New
York 10523, and our telephone number is (914) 460-1600.
RISK FACTORS
You should carefully consider the following factors and other
information included ordocuments incorporated by reference in this prospectus before
deciding to invest in shares of common stock.
We face substantial competition in our industries. The pharmacy
benefit management industry, which we refer to as the PBM industry, the
prescription mail serviceherein and the specialty pharmaceutical businesses are highly
competitive and many of our current and potential competitors have considerably
greater financial, technical, marketing and other resources than we do. The PBM
business includes a number of large, well-capitalized companies with nationwide
operations and many smaller organizations typically operating on a local or
regional basis. One of the larger organizations is owned by or otherwise related
to a brand name drug manufacturer andtherein may have significant influence on the
distribution of pharmaceuticals.
We also compete with several national and regional companies that
primarily provide therapeutic pharmaceutical services to the chronically ill and
genetically impaired, many of which also have substantial financial resources.
Some of these competitors have been in the specialty pharmaceutical industry
considerably longer than we have and have secured long-term supply or
distribution arrangements for prescription pharmaceuticals necessary to treat
certain chronic disease states on price terms substantially more favorable than
the terms currently available to us. As a result of such advantageous pricing,
we may be unable to compete with these companies on particular prescription
products or in particular disease states.
Any change in our relationship with managed care organizations
providing health and prescription benefits under Tennessee's state health
program could reduce our profitability. Historically, a majority of our revenues
have been derived from providing PBM services in the state of Tennessee to
managed care organizations, or MCOs, participating in Tennessee's TennCare (R)
program. The TennCare (R) program operates under a demonstration waiver from the
United States Health Care Financing Agency, which is due to expire on
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December 31, 2001. We provide our ongoing service to those MCOs under this
demonstration waiver program. If the waiver is not renewed, or we are not chosen
to continue to provide pharmacy benefits to enrollees of a successor program,
then the failure to provide such services would have a material adverse effect
on our financial position and results of operations. The ongoing funding for the
TennCare (R) program has been the subject of significant discussion at various
governmental levels since its inception. Should the funding sources for the
TennCare (R) program change significantly, our ability to serve those customers
could be impacted and would have a material adverse effect on our financial
position and results of operations.
Increases in the price of pharmaceuticals may reduce our revenues.
Under capitated arrangements, we are responsible for increases in prescription
costs, which adversely affects our gross profits. In such instances, we may be
required to increase capitated contract rates on new contracts and upon renewal
of existing capitated contracts. However, there can be no assurance that we will
be successful in obtaining these rate increases.
If we lose relationships with one or more key pharmaceutical
manufacturers or if the payments we receive from pharmaceutical manufacturers
decline, our business, profitability and growth prospects could suffer. We have
contractual relationships with numerous pharmaceutical manufacturers that pay us
rebate payments based on use of selected drugs by health plan members, as well
as fees for other programs and services. We believe our business, profitability
and growth prospects could suffer if:
o we lose relationships with one or more key pharmaceutical
manufacturers;
o rebates decline due to our failure to meet market share or other
thresholds;
o legal restrictions are imposed on the ability of pharmaceutical
manufacturers to offer formulary rebates or purchase our programs or
services; or
o pharmaceutical manufacturers choose not to offer formulary rebates or
purchase our programs or services.
Over the next few years, as patents expire covering many brand name
drugs that currently have substantial market share, generic products will be
introduced that may substantially reduce the market share of the brand name
drugs. Historically, manufacturers of generic drugs have not offered formulary
rebates on their drugs. If the use of newly-approved, brand name drugs added to
our formulary, which is the list of preferred prescription drugs covered by a
health plan, does not offset any decline in use of brand name drugs whose
patents expire, our profitability could be reduced.
If we lose pharmacy network affiliations, our business,
profitability and growth prospects could suffer. Our contracts with retail
pharmacies, which are non-exclusive, are generally terminable by either party on
short notice. If one or more of the top pharmacy chains elects to terminate its
relationship with us or if we are only able to continue our relationship on
terms less favorable to us, our members' access to retail pharmacies and our
business could suffer. In addition, some large retail pharmacy chains either own
or have strategic alliances with PBMs or could attempt to acquire or enter into
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these kinds of relationships with PBMs in the future. Ownership of, or alliances
with, PBMs by retail pharmacy chains could have a material adverse effect on our
relationships with these retail pharmacy chains and on our business,
profitability and growth prospects.
We are subject to heightened federal regulatory scrutiny, which
could result in sanctions or penalties. As a participant in the healthcare
industry, our operations and relationships are subject to extensive federal and
state laws and regulations and enforcement by federal and state governmental
agencies. There are significant uncertainties regarding the application of many
of these legal requirements to our business, and we cannot provide any assurance
that a regulatory agency charged with enforcement of any of these laws or
regulations will not interpret them differently or, if there is an enforcement
action brought against us, that our interpretation would prevail. In addition,
there are numerous proposed health care laws and regulations at the federal and
state levels, many of which could materially affect our ability to conduct our
business or adversely affect our results of operations. We are unable to predict
what additional federal or state legislation or regulatory initiatives may be
enacted in the future relating to our business or the health care industry in
general, or what effect any such legislation or regulations might have on us.
Under a corporate integrity agreement we entered into with the
Office of Inspector General or OIG, within the U.S. Department of Health and
Human Services or HHS, we are subject to increased oversight by the OIG. Should
the oversight procedures reveal credible evidence of any violation of federal
law, we are required to report such potential violations to the OIG and the U.S.
Department of Justice. We are therefore subject to increased regulatory scrutiny
and, if we commit legal or regulatory violations, we may be subject to an
increased risk of sanctions or penalties, including exclusion from participation
in the Medicare or Medicaid programs.
Subject to certain statutory and regulatory exceptions (including
exceptions relating to certain managed care, discount, group purchasing and
personal services arrangements), Federal law prohibits the payment or receipt of
remuneration to induce, arrange for or recommend the purchase of health care
items or services paid for in whole or in part by Medicare or state health care
programs (including Medicaid programs or Medicaid waiver programs, such as
TennCare (R)). Certain state laws may extend the prohibition to items or
services that are paid for by private insurance and self-pay patients. Our
arrangements with RxCare of Tennessee, Inc., a pharmacy services administrative
organization owned by the Tennessee Pharmacists Association, and other pharmacy
network administrators, drug manufacturers, marketing agents, brokers, health
plan sponsors, pharmacies and others parties routinely involve payments to or
from persons who provide or purchase, or recommend or arrange for the purchase
of, items or services paid in part by the TennCare (R) program or by other
programs covered by such laws. We carefully consider the importance of such
"anti-kickback" laws when structuring our operations, and believe that we are in
compliance with such laws. Violation of the Federal anti-kickback statute could
subject us to criminal and/or civil penalties, including exclusion from Medicare
and Medicaid (including TennCare (R)) programs or state-funded programs in the
case of state enforcement.
The federal anti-kickback law has been interpreted broadly by
courts, the OIG and administrative bodies. Because of the federal statutes,
broad scope, federal regulations establish certain safe harbors from liability.
5
Safe harbors exist for certain properly reported discounts received from
vendors, certain investment interest, and certain properly disclosed payments
made by vendors to group purchasing organizations, as well as for other
transactions or relationships. In late 1999, HHS adopted final rules revising
the discount safe harbor to protect certain rebates. Because this revision is
fairly recent, the guidance on how the safe harbor revision will be interpreted
is not fully developed. Nonetheless, a practice that does not fall within a safe
harbor is not necessarily unlawful, but may be subject to scrutiny and
challenge. In the absence of an applicable exception or safe harbor, a violation
of the statute may occur even if only one purpose of a payment arrangement is to
induce patient referrals or purchases. Among the practices that have been
identified by the OIG as potentially improper under the statute are certain
"product conversion programs" in which benefits are given by drug manufacturers
to pharmacists or physicians for changing a prescription (or recommending or
requesting such a change) from one drug to another. Anti-kickback laws have been
cited as a partial basis, along with state consumer protection laws, for
investigations and multi-state settlements relating to financial incentives
provided by drug manufacturers to retail pharmacies in connection with such
programs.
Certain governmental entities have commenced investigations of PBM
companies and other companies having dealings with the PBM industry and have
identified issues concerning selection of drug formularies, therapeutic
substitution programs and discounts or rebates from prescription drug
manufacturers. Additionally, at least one state has filed a lawsuit concerning
similar issues against a health plan. To date, we have not been the subject of
any such investigation or suit and have not received subpoenas or been requested
to produce documents for any such investigation or suit. However, there can be
no assurance that we will not receive subpoenas or be requested to produce
documents in pending investigations or litigations in the future.
We believe that we are in compliance with the legal requirements
imposed by the anti-remuneration laws and regulations, and we believe that there
are material and substantial differences between drug switching programs that
have been challenged under these laws and the therapeutic interchange practices
and formulary management programs offered by us to our customers. However, there
can be no assurance that we will not be subject to scrutiny or challenge under
such laws or regulations, or that any such challenge would not have a material
adverse effect upon us.
Pending and future litigation could materially affect our
relationships with pharmaceutical manufacturers or subject us to significant
monetary damages. Since 1993, retail pharmacies have filed over 100 separate
lawsuits against pharmaceutical manufacturers, wholesalers and certain PBMs,
challenging brand name drug pricing practices under various state and federal
antitrust laws. The plaintiffs alleged, among other things, that the
manufacturers had offered, and certain PBMs had knowingly accepted, discounts
and rebates on purchases of brand name prescription drugs that violated the
Federal Sherman Act and the Federal Robinson-Patman Act. Some manufacturers
settled certain of these actions, including a Sherman Act case brought on behalf
of a nationwide class of retail pharmacies. The class action settlements
generally provided for commitments by the manufacturers in their discounting
practices to retail pharmacies. The defendants who did not settle won the
6
Sherman Act class action on a directed verdict. With respect to the cases filed
by plaintiffs who opted out of the class action, some drug manufacturers have
settled certain of these actions, but such settlements are not part of the
public record. The Robinson-Patman Act cases are still pending.
We are not currently a party to any of these proceedings. To date,
we do not believe any of these settlements have had a material adverse effect on
our business. However, we cannot provide any assurance that the terms of the
settlements will not materially adversely affect us in the future or that we
will not be made a party to any separate lawsuit. In addition, we cannot predict
the outcome or possible ramifications to our business of the Robinson-Patman Act
cases.
If legislative or regulatory initiatives restrict our ability to use
patient identifiable medical information, our clinical programs and our business
growth strategy based on these services could suffer. Through our health
improvement programs, we help our health plan sponsor customers identify
individuals who will most benefit from the programs. Governmental restrictions
on the use of patient identifiable information may adversely affect our ability
to conduct health improvement programs and medical outcome studies and could
adversely affect our growth strategy based on these programs. Federal and state
legislation has been proposed, and some state laws have been enacted, to
restrict the use and disclosure of patient identifiable medical information.
Legislation could be enacted in the future that severely restricts or prohibits
our use of patient identifiable information, which could harm our business,
profitability and growth prospects.
In December 2000, HHS issued final regulations regarding the privacy
of individually-identifiable health information pursuant to the Health Insurance
Portability and Accountability Act of 1996, or HIPAA. This final rule on privacy
applies to both electronic and paper records and imposes extensive requirements
on the way in which health care providers, health plan sponsors and their
business associates use and disclose protected information. The final rule gives
patients significant rights to understand and control how their protected health
information is used and disclosed. Direct providers, such as pharmacies, are
required to obtain patient consents for treatment, payment and health care
operations. For all uses or disclosures of protected information that do not
involve treatment, payment or health care operations, the rule requires that all
covered entities obtain a valid patient authorization. In most cases, use or
disclosure of protected health information must be limited to the minimum amount
necessary to achieve the purpose of the use or disclosure. Organizations subject
to the rule will have approximately two years to comply with its provisions. In
addition, HHS has proposed, but not yet finalized, regulations pursuant to HIPAA
that govern the security of individually-identifiable health information.
Sanctions for failing to comply with standards issued pursuant to HIPAA include
criminal penalties and civil sanctions. Due to the complex and controversial
nature of the privacy regulations, they may be subject to court challenge, as
well as further legislative and regulatory actions that could alter their
effect. We cannot at this time predict with specificity what impact the recently
adopted final rule on the privacy of individually-identifiable health
information, or the proposed rule on security of individually-identifiable
health information may have on us. However, they will likely increase our burden
of regulatory compliance with respect to our health improvement programs and
other information-based products, and may reduce the amount of information we
may use if patients do not consent to such use. There can be no assurance that
the restrictions and duties imposed by the recently adopted final rule on the
privacy of individually-identifiable health information, or the proposed rule on
security of individually-identifiable health information, will not have a
material adverse effect on our business, profitability and growth prospects.
7
Even without new legislation and beyond the final federal
regulations, individual health plan sponsor customers could prohibit us from
including their patients' medical information in our various databases of
medical data. They could also prohibit us from offering services that involve
the compilation of such information.
The loss of a key employee could cause our business to suffer. Our
success is largely dependent on the services of Richard H. Friedman, our
Chairman and Chief Executive Officer, and to a lesser extent, other key
management personnel. We have an employment agreement with Mr. Friedman which
provides for his continued employment. However, we cannot assure you that we
will be able to retain his services or the services of any other key management
personnel. The loss of the services of one or more of our senior management
could cause our business, profitability and growth prospects to suffer.
We have anti-takeover provisions that could delay or prevent a
change in control, even if it would benefit stockholders. We have adopted
anti-takeover provisions that could delay or prevent a third party from gaining
control of us in a transaction that our board of directors has not negotiated
and approved, even if such change in control would be beneficial to our
stockholders. These anti-takeover provisions could depress the market price of
our common stock. These anti-takeover provisions include:
o change in control provisions in employment agreements with various
executive officers;
o restrictions on who may call a special meeting of stockholders; and
o a stockholders' rights plan.
The trading price of our common stock is volatile. The trading price
of our common stock could be subject to wide fluctuations in response to
quarter-to-quarter variations in our operating results, government regulatory
action, general conditions in the pharmaceutical industry, increased price
competition, changes in earnings estimates by analysts or other events or
factors, many of which are beyond our control. In addition, the stock market has
experienced extreme price and volume fluctuations.
8
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus may include or incorporate by referencecontain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, including statements regarding our expectations, hopes, beliefs,
intentions or strategies regarding the future. These statements may be included
in the information incorporated by reference above under "Where You Can Find
More Information." Forward looking statements may include statements relating
to:
o our business development activities;
o sales and marketing efforts;
o the status of material contractual arrangements including the
negotiation or re-negotiation of such arrangements;
o future capital expenditures;
o the effects of regulation and competition on our business and future
operating performance;
o the results, benefits and risks associated with integration of
acquired companies; and
o the likely outcome and the effect of legal proceedings on our business
and operations and/as amended, or the resolutionSecurities Act, and Section 21E of the Exchange Act. They can be identified by the use of forward-looking words, such as “may,” “will,” “should,” “could,” “would,” “estimate,” “project,” “forecast,” “intend,” “expect,” “plan,” “anticipate,” “believe,” “target,” “providing guidance” or settlement thereof.
Investors are cautionedother comparable words, or by discussions of strategy that any such forward looking statements are
not guarantees of future performance andmay involve risks and uncertainties. The forward-looking statements contained in this prospectus reflect our views and assumptions only as of the date of this prospectus.and
that could cause actual results mayto differ materially from those possible results discussed
in the forward looking statements as a result of various factors. Theseforward-looking statements. Some factors include, among other things, that could cause actual results to differ include:
We are a national provider of home infusion and other resources.
Consequently, you should regard forward-looking statements onlyhome care services that partners with patients, physicians, hospitals, healthcare payors and pharmaceutical manufacturers to provide clinical management solutions and the delivery of cost-effective access to prescription medications and home health services. Our services are designed to improve clinical outcomes to patients with chronic and acute healthcare conditions while controlling overall healthcare costs. We were incorporated in Delaware in 1996 as MIM Corporation, with our current plans, estimatesprimary business and beliefs. We do not promiseoperations being pharmacy benefit management services. Over the years, we have expanded our service offerings to notify you ifinclude home infusion services and home health, which are now the primary drivers of our growth strategy. As of December 31, 2012, we learnhad a total of 81 locations in 24 states, encompassing 32 home nursing locations and 49 home infusion locations, including two contract affiliated infusion pharmacies. On February 1, 2013, we acquired 14 new infusion pharmacy locations through the acquisition of HomeChoice Partners, Inc., to which we refer as the HomeChoice Acquisition.
Our platform provides nationwide service capabilities and the ability to deliver clinical management services that offer patients a high-touch, home-based and community-based care environment. Our core services are provided in coordination with, and under the direction of the patient’s physician. Our infusion and home health professionals, including pharmacists, nurses, dieticians, respiratory therapists and physical therapists, work with the physician to develop a plan of care suited to our assumptions or projections are wrong for any reason. Before you
decide to invest in shares of common stock you should be aware that the factors
we discusspatients’ specific needs. Whether in the "Risk Factors" sectionhome, physician office, ambulatory infusion center or other alternate site of care, we provide products, services and condition-specific clinical management programs, often tailored to improve the care of individuals with complex health conditions such as cancer, multiple sclerosis, organ transplants, bleeding disorders, rheumatoid arthritis, immune deficiencies and congestive heart failure.
On February 1, 2012, we entered into a Community Pharmacy and Mail Business Purchase Agreement by and among Walgreen Co. and certain subsidiaries, on the one hand, and BioScrip and certain subsidiaries, on the other hand, to whom we refer collectively as the Sellers, with respect to the sale of certain assets, rights and properties, to which we refer as the Pharmacy Services Asset Sale, relating to the Sellers’ traditional and specialty pharmacy mail and community retail pharmacy store operations. As a result of the Pharmacy Services Asset Sale, we reevaluated our operating and reportable segments, changing our operating and reportable segments from “Infusion/Home Health Services” and “Pharmacy Services” to our new operating and reportable segments: “Infusion Services”, “Home Health Services” and “PBM Services”. These three new operating and reportable segments reflect how our chief operating decision maker now reviews our results in terms of allocating resources and assessing performance.
Our Infusion Services segment provides services consisting of home infusion therapy, respiratory therapy and the provision of durable medical equipment products and services. Infusion services include the dispensing and administering of infusion-based drugs, which typically require additional nursing and clinical management services, equipment to administer the correct dosage and patient training designed to improve patient outcomes. Home infusion services also include the dispensing of certain self-injectible therapies.
Our Home Health Services segment provides services including the provision of skilled nursing services and therapy visits, private duty nursing services, hospice services, rehabilitation services and medical social services to patients primarily in their home.
Our integrated PBM services segment, which includes discount card programs, design programs and claims processing to offer customers and patients cost-effective access to pharmacy products and services through network pharmacy providers.
We maintain our principal executive offices at 100 Clearbrook Road, Elmsford, New York 10523. Our telephone number there is (914) 460-1600. The address of our website is http://bioscrip.com. The information set forth on, or connected to, our website is expressly not incorporated by reference into, and does not constitute a part of, this prospectus could causeprospectus.
| 6 |
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our actual resultsratio of earnings to differfixed charges for each of the periods indicated (amounts in thousands except for ratios of earnings to fixed charges).
| For the years ended December 31, | ||||||||||||||||||||
| (in thousands) | 2012(1) | 2011 | 2010 | 2009 | 2008 | |||||||||||||||
| Earnings (loss) | ||||||||||||||||||||
| Pre-tax (loss) income | $ | (12,779 | ) | $ | 11 | $ | (18,975 | ) | $ | 13,546 | $ | (86,228 | ) | |||||||
| Add: Fixed charges | 28,123 | 29,562 | 29,323 | 2,758 | 3,878 | |||||||||||||||
| Add: Amortization of capitalized interest | 68 | 59 | 12 | - | - | |||||||||||||||
| Less: Interest capitalized | (12 | ) | 115 | - | - | - | ||||||||||||||
| Total earnings (loss) | $ | 15,424 | $ | 29,517 | $ | 10,360 | $ | 16,304 | $ | (82,350 | ) | |||||||||
| Fixed charges | ||||||||||||||||||||
| Interest expense, net | $ | 25,487 | $ | 27,190 | $ | 23,573 | $ | 1,920 | $ | 2,711 | ||||||||||
| Interest capitalized | (12 | ) | 115 | - | - | - | ||||||||||||||
| Amortized premiums, discounts and capitalized expenses related to indebtedness | 1,274 | 1,058 | 4,062 | - | - | |||||||||||||||
| Interest costs incurred and estimated within rental expense | 1,374 | 1,200 | 1,688 | 838 | 1,167 | |||||||||||||||
| Total fixed charges | $ | 28,123 | $ | 29,562 | $ | 29,323 | $ | 2,758 | $ | 3,878 | ||||||||||
| Ratio of earnings to fixed charges | 0.55x | (2) | 1.00x | 0.35x | (2) | 5.91x | - | (2) | ||||||||||||
For purposes of computing the consolidated ratio of earnings to fixed charges, earnings (losses) consist of pre-tax income (loss) from what we have stated in any forward-looking
statements.
9
| (1) | Subsequent to December 31, 2012, the Company funded the HomeChoice Acquisition with a combination of $57.7 million in cash on hand and drawing of $14.6 million from the Company’s Second Amended and Restated Credit Agreement, dated as of March 17, 2011, to which we refer as the Revolving Credit Facility. The applicable drawdown from our Revolving Credit Facility occurred as of February 1, 2013, in the total amount of $20.0 million with an applicable interest rate of 4.50%, and was allocated as follows: (i) $14.6 million to partially fund the HomeChoice Acquisition and (ii) $5.4 million retained in cash for general corporate purposes. |
| (2) | Earnings before taxes were insufficient to coverfixed charges by $12.7 million, $19.0 million and $86.2 million for the fiscal years ended December 31, 2012, 2010 and 2008, respectively. |
| 7 |
USE OF PROCEEDS
The selling stockholder will receive all
Unless otherwise described inany prospectus supplement, we intend to use the net proceeds from the sale of securitiesby usunder this prospectus for generalcorporate purposes, which may include, among other things, financing future acquisitions of or investments in businesses or assets, capital expenditures, repurchases of our outstanding debt or equity securities, debt servicing requirements or redemption of our short-term or long-term borrowings, or for other working capital requirements. Until we apply thenet proceeds from a sale of securities to their intended purposes, we maytemporarilyinvestthe common stock. net proceeds in short-term marketable securities.We will disclose in the applicable prospectus supplement any intention to use the net proceeds from such offering in connection with an acquisition or to reduce or refinance outstanding debt.
We will not receive any of the proceeds from the sale by any selling stockholder pursuant to this prospectus of (i) up to an aggregate of 12,682,831 shares of our common stock, and (ii) up to an aggregate of 3,400,945 shares of our common stock issuable upon the sharesexercise of our outstanding warrants. However, we will receive the proceeds from the exercise of our outstanding warrants if they are not exercised on a cashless basis.
This section describes the general terms and provisions of our common stock. The prospectus supplement relating to anyoffering of common stock, offered by the selling stockholder under this prospectus.
SELLING STOCKHOLDER
The following table sets forth, as of July 11, 2001, the identityor other securities convertible into or exchangeable or exercisable for common stock, will describe more specific terms of the selling stockholder,offering of common stock or other securities, including the number of shares offered, the initial offering price, and market price and dividend information.
The summary set forth below does not purport to be complete and is subject to and qualified in its entirety by reference to our amended and restated certificate of common stock owned by the
selling stockholder prior to this offeringincorporation and the numberamended and restated bylaws, each of shares of common
stock offered by the selling stockholder under this prospectus.
Because the selling stockholder may sell all, some or none of the
common stock offered under this prospectus, no estimate can be given as to the
amount of common stock that will be held by the selling stockholder upon
termination of the offering. See "Plan of Distribution."
General
Our certificate of incorporation provides that we may issue up to 2,697,947125,000,000 shares of common stock, par value $.0001$0.0001 per share. As of March 5, 2013, 57,035,125 shares of common stock were issued and outstanding.
Voting. Holders of our common stock, subject to the provisions of our bylaws and the General Corporation Law of the State of Delaware, or the DGCL, relating to the fixing of a record date, are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders. The affirmative vote of a majority of the shares coveredpresent in person or represented by proxy at a duly held meeting at which a quorum is present shall be the act of the stockholders. Our stockholders do not have cumulative voting rights in the election of directors. Accordingly, holders of a majority of the shares voting are able to elect all of the directors.
Dividends. Holders of common stock are entitled to receive ratably dividends, in cash, securities, or property, as may from time to time be declared by our board of directors.
Rights Upon Liquidation. In the event of our liquidation, dissolution or winding up, the holders of our common stock will be entitled to share ratably in all of our assets that are available for distribution after payment in full of all of our liabilities.
Miscellaneous. The holders of our common stock have no preemptive or other subscription or conversion rights. In addition, there are no redemption or sinking fund provisions applicable to our common stock.
Stockholders’ Agreement
On January 24, 2010 the Company entered into a stockholders’ agreement, to which we refer as the Stockholders’ Agreement, with 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., to whom we refer collectively as the Kohlberg Stockholders, and Robert Cucuel, Mary Jane Graves, Nitin Patel, Joey Ryan, Colleen Lederer, Blackstone Mezzanine Partners II L.P., Blackstone Mezzanine Holdings II L.P., and S.A.C. Domestic Capital Funding, Ltd. Pursuant to the Stockholders’ Agreement, so long as the Kohlberg Stockholders or their affiliates beneficially own:
| · | at least 50% of the Initial Kohlberg Shares (as defined in the Stockholders’ Agreement), Kohlberg will be entitled to designate two directors toour board of directors; or, as applicable, |
| · | at least 15% (but less than 50%) of the Initial Kohlberg Shares, Kohlberg will be entitled to designate one director toour board of directors. |
The Company will include the Kohlberg’s nominees in each slate of nominees recommended byour board of directors in connection with any stockholders’ meeting. If at any time the Kohlberg Stockholders and/or their affiliates beneficially own in the aggregate less than 15% of the Initial Kohlberg Shares, then the stockholder parties to the Stockholders’ Agreement will not have the right to designate any directors toour board of directors. Furthermore, until Kohlberg ceases to have the right to designate one or more directors at least one of such Kohlberg designees will be entitled to representation on each of the Audit Committee, the Management Development and Compensation Committee and the Corporate Strategy Committee ofour board of directors.
Additionally, the Stockholders’ Agreement provides that, subject to certain exceptions, until Kohlberg ceases to have the right to designate one or more directors, as described above, none of the Kohlberg Stockholders, Robert Cucuel, Mary Jane Graves, Nitin Patel, Joey Ryan, or Colleen Lederer, or any of their directors, officers or controlled affiliates, will:
| · | effect, offer, propose, or actively participate in (other than to the extent their stock is otherwise impacted), or assist any other person/entity to effect, offer or propose or participate in: |
| · | any acquisition or any proposal to acquire any debt or equity securities of the Company (other than through the exercise of the Warrants (as defined in the Stockholders’ Agreement) or the roll over Options (as defined in the Stockholders’ Agreement)); |
| · | any tender or exchange offer for debt or equity securities of the Company; |
| · | any merger, consolidation, share exchange or business combination involving the Company or any material portion of its business or any purchase of all or any substantial part of the assets of the Company or any material portion of its business; |
| · | any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any material portion of its business; or |
| · | any “solicitation” of “proxies” (as such terms are defined under the Exchange Act), and the rules and regulations promulgated thereunder, but without regard to the exclusion from the definition of “solicitation” set forth in Rule l4a-l(l)(2)(iv) of Regulation 14A under the Exchange Act) with respect to the Company or any action resulting in such person or entity becoming a “participant” in any “election contest” (as such terms are used in Regulation 14A) with respect to the Company; |
| · | propose or make any recommendation with respect to any matter for submission to a vote of stockholders of the Company: |
| · | form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any shares of the Company’s common stock (but excluding any “group” consisting solely of such stockholder parties to the Stockholders’ Agreement and affiliates); |
| · | grant any proxy with respect to any shares of the Company’s common stock to any person or entity not designated by the Company, other than a revocable proxy authorizing a representative of a stockholder party to the Stockholders’ Agreement to vote at a meeting of stockholders of the Company in the ordinary course of business; |
| · | deposit any shares of the Company’s common stock in a voting trust or subject any such shares to any arrangement or agreement with respect to the voting of such shares or other agreement having similar effect, except for agreements solely among the stockholder parties to the Stockholders’ Agreement and the Company and except for permitted transfers; |
| · | execute any written stockholder consent with respect to the Company; |
| · | take any other action to seek to affect the control of the Company; |
| · | enter into any discussions with any person or entity with respect to any of the foregoing, or advise others to take any action with respect to any of the foregoing; |
| · | disclose to any person or entity any intention, plan or arrangement inconsistent with the foregoing or form any such intention that would result in any stockholder party to the Stockholders’ Agreement or the Company being required to make any such disclosure in any filing with a governmental authority or exchange or being required by applicable law to make a public announcement with respect thereto; or |
| · | request the Company or any of its affiliates, directors, officers, employees, representatives, advisors or agents, directly or indirectly, to amend or waive in any respect the Stockholders’ Agreement or the certificate of incorporation or the bylaws of the Company or any of its affiliates. |
Anti-Takeover Provisions
Provisions of the DGCL and ouramended and restated certificate of incorporation and amended and restated bylaws could make it more difficult to acquire us by means of a tender offer, a proxy contest or otherwise, or to remove incumbent officers and directors. These provisions are expected to discourage certain types of coercive takeover practices and takeover bids that our board of directors may consider inadequate and to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of increased protection of our ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging takeover or acquisition proposals because, among other things, negotiation of these proposals could result in an improvement of their terms. This summary below does not purport to be complete and is qualified in its entirety by reference to the DGCL and ouramended and restated certificate of incorporation and amended and restated bylaws.
Interested Stockholder Transactions under Delaware Law.
We are subject to Section 203 of the DGCL. Section 203 generally prohibits a Delaware corporation from engaging in any “business combination” with any “interested stockholder” for a period of three years after the date that such stockholder became an interested stockholder, unless:
| · | before such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested holder; |
| · | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes of determining the number of shares outstanding those shares owned by persons who are directors and also officers and by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
| · | on or after such date, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder. |
Section 203 defines “business combination” to include:
| · | any merger or consolidation involving the corporation and the interested stockholder; |
| · | any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder; |
| · | subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; |
| · | any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or |
| · | the receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits by or through the corporation. |
In general, Section 203 defines “interested stockholder” as an entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation or any entity or person affiliated with or controlling or controlled by such entity or person.
Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws.
Provisions in ouramended and restated certificate of incorporation and amended and restated bylaws may have the effect of discouraging or delaying certain transactions that may result in a change in control of our company or management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our common stock. Among other things, ouramended and restated certificate of incorporation and amended and restated bylaws:
| · | provide that stockholders do not have cumulative voting rights. |
| · | provide that stockholders do not have the power to call a special meeting. |
| · | impose advance notice requirements and procedures with respect to stockholder proposals and the nomination of candidates for election as directors. |
| · | provide that the Company indemnifies our officers and directors against losses incurred in investigations and legal proceedings resulting from their services to us, which may include service in connection with takeover defense measures. |
| · | permit the Company to issue shares of common stock without any action by stockholders. These additional shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. |
Blank Check Preferred Stock
Our amended and restated certificate of incorporation provides for 5,000,000 shares of preferred stock. The existence of authorized but unissued shares of preferred stock may enable our board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer or otherwise. To the extent our board causes shares of our preferred stock to be issued, the voting or other rights of a potential acquirer might be diluted. Our board of directors has the authority to issue shares of our preferred stock without any action by our stockholders. Any such issuance may have the effect of delaying, deterring or preventing a change of control of us.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock isAmerican Stock Transfer & Trust Co., New York, New York.
| 12 |
DESCRIPTION OF PREFERRED STOCK
Our amended and restated certificate of incorporation authorizes the issuance of up to 5,000,000 shares of preferred stock, par value $0.0001 per share. As of March 5, 2013, zero shares of preferred stock were issued and outstanding. Our board of directors, without further action of our stockholders,is authorized to provide for the issuance of the shares of preferred stock in series, and by filing a certificate pursuant to the DGCL, to establish from time to time the number of shares to be included in each series, and to fix the designation, powers, preferences, and relative rights of each such series and the qualifications, limitations, or restrictions thereof. Each class or series shall be appropriately designated by a distinguishing designation prior to the issuance of any shares thereof. The preferred stock of all series shall have powers, preferences and relative rights and shall be subject to qualifications, limitations and restrictions identical with those of other shares of the same series and, except to the extent otherwise provided in the description of the series, with those of shares of other series of the same class.
The DGCL provides that the holders of preferred stock will have the right to vote separately as a class on any proposal involving fundamental changes in the rights of holders of that preferred stock. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our common stock. Preferred stock could be issued quickly with terms designed to delay or prevent a change in control of our company or make removal of management more difficult. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of our common stock.
| 13 |
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the debt securities that we may offer under this prospectus and the related indenture. While the terms we have summarized below will apply generally to any future debt securities we may offer pursuant to this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. If we indicate in a prospectus supplement, the terms of any debt securities we offer under that prospectus supplement may differ from the terms we describe below.
We may offer debt securities from time to time, as either senior or subordinated debt or as senior or subordinated convertible debt, in one or more offerings under this prospectus. We will issue any such debt securities under an indenture that we will enter into with a trustee to be named in the indenture. We have filed a form of indenture as an exhibit to the registration statement of which this prospectus forms a part. The indenture will be qualified under the Trust Indenture Act of 1939, as in effect on the date of the indenture. We use the term “debenture trustee” to refer to the trustee under the indenture.
The following summaries of material provisions of the debt securities and the indenture are subject to, and qualified in their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
The indenture provides that debt securities may be issued from time to time in one or more series. The indenture does not limit the amount of debt securities that may be issued thereunder, and the indenture provides that the specific terms of any series of debt securities shall be set forth in, or determined pursuant to, an authorizing resolution, an officers’ certificate and/or a supplemental indenture, if any, relating to such series. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable prospectus supplement.
We will describe in each prospectus supplement the following terms relating to a series of debt securities:
| · | the title or designation of the debt securities; |
| · | any limit upon the aggregate principal amount of the debt securities; |
| · | the date or dates on which we will pay the principal on the debt securities; |
| · | the interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the date or dates interest will be payable and the record dates for interest payment dates or the method for determining such dates; |
| · | the manner in which the amounts of payment of principal of, premium or interest on the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies other than that in which the debt securities are denominated or designated to be payable or by reference to a commodity, commodity index, stock exchange index or financial index; |
| · | the currency of denomination of the debt securities; |
| · | if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined; |
| · | the place or places where the principal of, premium, and interest on the debt securities will be payable; |
| · | the terms and conditions upon which we may redeem the debt securities; |
| · | any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities; |
| · | the dates on which and the price or prices at which we will repurchase the debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations; |
| · | the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
| · | the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount; |
| · | whether the debt securities are to be issued at any OID and the amount of discount with which such debt securities may be issued; |
| · | whether the debt securities will be issued in the form of certificated debt securities or global debt securities; |
| · | the form of the debt securities; |
| · | the terms and conditions upon which the debt securities will be so convertible or exchangeable into securities or property of another person, if at all, and any additions or changes, if any, to permit or facilitate such conversion or exchange; |
| · | whether the debt securities will be subject to subordination and the terms of such subordination; |
| · | any restriction or condition on the transferability of the debt securities; |
| · | any addition or change in the provisions related to compensation and reimbursement of the trustee which applies to securities of such series; |
| · | any addition to or change in the events of default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities; |
| · | any addition to or change in the covenants described in this prospectus or in the indenture with respect to the debt securities; and |
| · | any other terms of the debt securities, which may modify or delete any provision of the indenture. |
Conversion or Exchange Rights
We will set forth in the prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
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Consolidation, Merger or Sale; No Protection in Event of a Change of Control or Highly LeveragedTransaction
The indenture provides that we may not merge or consolidate with or into another entity, or sell other than for cash or lease all or substantially all our assets to another entity, or purchase all or substantially all the assets of another entity unless we are the surviving entity or, if we are not the surviving entity, the successor, transferee or lessee entity expressly assumes all of our obligations under the indenture or the debt securities, as appropriate.
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders of the debt securities additional protection in the event we have a change of control or in the event of a highly leveraged transaction (whether or not such transaction results in a change of control), which could adversely affect holders of debt securities.
Events of Default Under the Indenture
The following are events of default under the indenture with respect to any series of debt securities that we may issue:
| · | if we fail to pay interest when due and our failure continues for 90 days and the time for payment has not been extended or deferred; |
| · | if we fail to pay the principal, or premium, if any, when due whether by maturity or called for redemption; |
| · | if we fail to pay a sinking fund installment, if any, when due and our failure continues for 30 days; |
| · | if we fail to observe or perform any other covenant relating to such series contained in the debt securities of such series or the indenture, other than a covenant specifically relating to and for the benefit of holders of another series of debt securities, and our failure continues for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority in aggregate principal amount of the outstanding debt securities of the applicable series; and |
| · | if specified events of bankruptcy, insolvency or reorganization occur as to us. |
No event of default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an event of default with respect to any other series of debt securities. The occurrence of an event of default may constitute an event of default under any bank credit agreements we may have in existence from time to time. In addition, the occurrence of certain events of default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness outstanding from time to time.
If an event of default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the debenture trustee or the holders of not less than a majority in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the debenture trustee if given by the holders), declare to be due and payable immediately the principal (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of and premium and accrued and unpaid interest, if any, on all debt securities of that series. Before a judgment or decree for payment of the money due has been obtained with respect to debt securities of any series, the holders of a majority in principal amount of the outstanding debt securities of that series (or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) may rescind and annul the acceleration if all events of default, other than the non-payment of accelerated principal, premium, if any, and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the applicable indenture (including payments or deposits in respect of principal, premium or interest that had become due other than as a result of such acceleration). We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an event of default.
Subject to the terms of the indenture, if an event of default under the indenture shall occur and be continuing, the debenture trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the debenture trustee, or exercising any trust or power conferred on the debenture trustee, with respect to the debt securities of that series, provided that:
| · | the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
| · | subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities of any series will only have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies if:
| · | the holder previously has given written notice to the debenture trustee of a continuing event of default with respect to that series; |
| · | the holders of at least a majority in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and |
| · | the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series (or at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) other conflicting directions within 60 days after the notice, request and offer. |
These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the applicable debenture trustee regarding our compliance with specified covenants in the applicable indenture.
Modification of Indenture; Waiver
The debenture trustee and we may change the applicable indenture without the consent of any holders with respect to specific matters, including:
| · | to fix any ambiguity, defect or inconsistency in the indenture; and |
| · | to change anything that does not materially adversely affect the interests of any holder of debt securities of any series issued pursuant to such indenture. |
In addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series (or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) that is affected. However, the debenture trustee and we may make the following changes only with the consent of each holder of any outstanding debt securities affected:
| · | extending the fixed maturity of the series of debt securities; |
| · | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption of any debt securities; |
| · | reducing the principal amount of discount securities payable upon acceleration of maturity; |
| · | making the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; |
| · | impairing the right to institute suit for the enforcement of any payment on or after the fixed maturity date of any series of debt securities; |
| · | materially adversely affect the economic terms of any right to convert or exchange any debt securities; and |
| · | reducing the percentage of debt securities, the holders of which are required to consent to any amendment or waiver; or modifying, without the written consent of the debenture trustee, the rights, duties or immunities of the debenture trustee. |
Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series (or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that series or in respect of a covenant or provision, which cannot be modified or amended without the consent of the holder of each outstanding debt security of the series affected; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Discharge
Each indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for obligations to:
| · | register the transfer or exchange of debt securities of the series; |
| · | replace stolen, lost or mutilated debt securities of the series; |
| · | maintain paying agencies; |
| · | hold monies for payment in trust; |
| · | compensate and indemnify the debenture trustee; and |
| · | appoint any successor trustee. |
In order to exercise our rights to be discharged with respect to a series, we must deposit with the debenture trustee money or government obligations sufficient to pay all the principal of, the premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange, and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company, or DTC, or another depositary named by us and identified in a prospectus supplement with respect to that series.
At the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange or in the indenture, we will make no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
| · | issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or |
| · | register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence and continuance of an event of default under the indenture, undertakes to perform only those duties as are specifically set forth in the indenture. Upon an event of default under the indenture, the debenture trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, will we make interest payments by check which we will mail to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the debenture trustee our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be governed and construed in accordance with the laws of the State of New York.
Subordination of Subordinated Debt Securities
Any subordinated debt securities will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement.
The indenture in the form initially filed as an exhibit to the registration statement of which this prospectus forms a part does not limit the amount of indebtedness which we may incur, including senior indebtedness or subordinated indebtedness as well as senior convertible indebtedness or subordinated convertible indebtedness, and does not limit us from issuing any other debt, including secured indebtedness or unsecured indebtedness.
Global Securities
The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depository identified in an applicable subsequent filing and registered in the name of the depository or a nominee for the depository. In such a case, one or more global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of outstanding debt securities of the series to be represented by the global security or securities. Unless and until it is exchanged in whole or in part for debt securities in definitive certificated form, a global security may not be transferred except as a whole by the depository for the global security to a nominee of the depository or by a nominee of the depository to the depository or another nominee of the depository or by the depository or any nominee to a successor depository for that series or a nominee of the successor depository and except in the circumstances described in an applicable subsequent filing.
We expect that the following provisions will apply to depository arrangements for any portion of a series of debt securities to be represented by a global security. Any additional or different terms of the depository arrangement will be described in an applicable subsequent filing.
Upon the issuance of any global security, and the deposit of that global security with or on behalf of the depository for the global security, the depository will credit, on its book-entry registration and transfer system, the principal amounts of the debt securities represented by that global security to the accounts of institutions that have accounts with the depository or its nominee. The accounts to be credited will be designated by the underwriters or agents engaging in the distribution of the debt securities or by us, if the debt securities are offered and sold directly by us. Ownership of beneficial interests in a global security will be limited to participating institutions or persons that may hold interests through such participating institutions. Ownership of beneficial interests by participating institutions in the global security will be shown on, and the transfer of the beneficial interests will be effected only through, records maintained by the depository for the global security or by its nominee. Ownership of beneficial interests in the global security by persons that hold through participating institutions will be shown on, and the transfer of the beneficial interests within the participating institutions will be effected only through, records maintained by those participating institutions. The laws of some jurisdictions may require that purchasers of securities take physical delivery of the securities in certificated form. The foregoing limitations and such laws may impair the ability to transfer beneficial interests in the global securities.
So long as the depository for a global security, or its nominee, is the registered owner of that global security, the depository or its nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the global security for all purposes under the applicable indenture. Unless otherwise specified in an applicable subsequent filing and except as specified below, owners of beneficial interests in the global security will not be entitled to have debt securities of the series represented by the global security registered in their names, will not receive or be entitled to receive physical delivery of debt securities of the series in certificated form and will not be considered the holders thereof for any purposes under the indenture. Accordingly, each person owning a beneficial interest in the global security must rely on the procedures of the depository and, if such person is not a participating institution, on the procedures of the participating institution through which the person owns its interest, to exercise any rights of a holder under the indenture.
The depository may grant proxies and otherwise authorize participating institutions to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a holder is entitled to give or take under the applicable indenture. We understand that, under existing industry practices, if we request any action of holders or any owner of a beneficial interest in the global security desires to give any notice or take any action a holder is entitled to give or take under the applicable indenture, the depository would authorize the participating institutions to give the notice or take the action, and participating institutions would authorize beneficial owners owning through such participating institutions to give the notice or take the action or would otherwise act upon the instructions of beneficial owners owning through them.
Unless otherwise specified in applicable subsequent filings, payments of principal, premium and interest on debt securities represented by a global security registered in the name of a depository or its nominee will be made by us to the depository or its nominee, as the case may be, as the registered owner of the global security.
We expect that the depository for any debt securities represented by a global security, upon receipt of any payment of principal, premium or interest, will credit participating institutions’ accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown on the records of the depository. We also expect that payments by participating institutions to owners of beneficial interests in the global security held through those participating institutions will be governed by standing instructions and customary practices, as is now the case with the securities held for the accounts of customers registered in street name, and will be the responsibility of those participating institutions. None of us, the debenture trustee or any agent of ours or the debenture trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial interests in a global security, or for maintaining, supervising or reviewing any records relating to those beneficial interests.
Unless otherwise specified in the applicable subsequent filings, a global security of any series will be exchangeable for certificated debt securities of the same series only if:
Upon any exchange, owners of beneficial interests in the global security or securities will be entitled to physical delivery of individual debt securities in certificated form of like tenor and terms equal in principal amount to their beneficial interests, and to have the debt securities in certificated form registered in the names of the beneficial owners, which names are expected to be provided by the depository's relevant participating institutions to the debenture trustee.
In the event that DTC acts as depository for the global securities of any series, the global securities will be issued as fully registered securities registered in the name of Cede & Co., DTC’s partnership nominee.The following information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for the accuracy or completeness thereof.
DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds and provides asset servicing for U.S. and non-U.S. equity issues, corporate and municipal debt issues, and money market instruments from countries that DTC’s participants, referred to as direct participants, deposit with DTC. DTC also facilitates the post-trade settlement among direct participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between direct participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly, referred to as indirect participants. The DTC Rules applicable to its participants are on file with the SEC.
DTC is awholly-ownedsubsidiary of The Depository Trust & Clearing Company, or DTCC.DTCC is owned by the users of its regulated subsidiaries.DTCC, through its subsidiaries, provides clearing, settlement and information services for equities, corporate and municipal bonds, government and mortgage backed securities, money market instruments and over the-counter derivatives. In addition, DTCC is a leading processor of mutual funds and insurance transactions, linking funds and carriers with their distribution networks. DTCC’s customer base extends to thousands of companies within the global financial services industry. DTCC serves brokers, dealers, institutional investors, banks, trust companies, mutual fund companies, insurance carriers, hedge funds and other financial intermediaries – either directly or through correspondent relationships.
To facilitate subsequent transfers, the debt securities may be registered in the name of DTC’s nominee, Cede & Co. The deposit of the debt securities with DTC and their registration in the name of Cede & Co. will effect no change in beneficial ownership. DTC has no knowledge of the actual beneficial owners of the debt securities. DTC's records reflect only the identity of the direct participating institutions to whose accounts debt securities are credited, which may or may not be the beneficial owners. The participating institutions remain responsible for keeping account of their holdings on behalf of their customers.
Delivery of notices and other communications by DTC to direct participating institutions, by direct participating institutions to indirect participating institutions, and by direct participating institutions and indirect participating institutions to beneficial owners of debt securities are governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect.
Neither DTC nor Cede & Co. consents or votes with respect to the debt securities. Under its usual procedures, DTC mails a proxy to the issuer as soon as possible after the record date. The proxy assigns Cede & Co.’s consenting or voting rights to those direct participating institution to whose accounts the debt securities are credited on the record date.
If applicable, redemption notices shall be sent to Cede & Co. If less than all of the debt securities of a series represented by global securities are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participating institution in that issue to be redeemed.
To the extent that any debt securities provide for repayment or repurchase at the option of the holders thereof, a beneficial owner shall give notice of any option to elect to have its interest in the global security repaid by us, through its participating institution, to the debenture trustee, and shall effect delivery of the interest in a global security by causing the direct participating institution to transfer the direct participating institution's interest in the global security or securities representing the interest, on DTC’s records, to the debenture trustee. The requirement for physical delivery of debt securities in connection with a demand for repayment or repurchase will be deemed satisfied when the ownership rights in the global security or securities representing the debt securities are transferred by direct participating institutions on DTC's records.
DTC may discontinue providing its services as securities depository for the debt securities at any time. Under such circumstances, in the event that a successor securities depository is not appointed, debt security certificates are required to be printed and delivered as described above.
We may decide to discontinue use of the system of book-entry transfers through the securities depository. In that event, debt security certificates will be printed and delivered as described above.
DTCC is industry-owned by its customers who are members of the financial community, such as banks, broker/dealers, mutual funds and other financial institutions. DTCC operates on an at-cost basis, returning excess revenue from transaction fees to its member firms. All services provided by DTC are regulated by the SEC.
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We may issue, either separately or together with other securities, warrants for the purchase of any of the other types of securities that we may sell under this prospectus.
The warrants will be issued under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all to be set forth in the applicable prospectus supplement relating to any or all warrants in respect of which this prospectus is being delivered. Copies of the form of agreement for each warrant, which we refer to collectively as “warrant agreements,” including the forms of certificates representing the warrants, which we refer to collectively as “warrant certificates,” and reflecting the provisions to be included in such agreements that will be entered into with respect to the particular offerings of each type of warrant, will be filed with the SEC and incorporated by reference as exhibits to the registration statement of which this prospectusforms a part.
The following description sets forth certain general terms and provisions of the warrants to which any prospectus supplement may relate. The particular terms of the warrants to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the warrants so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the warrants, warrant agreements or warrant certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable warrant agreement and certificate for additional information before you purchase any of our warrants.
General
The prospectus supplement will describe the terms of the warrants in respect of which this prospectus is being delivered, as well as the related warrant agreement and warrant certificates, including the following, where applicable:
| • | the principal amount of, or the number of, securities, as the case may be, purchasable upon exercise of each warrant and the initial price at which the principal amount or number of securities, as the case may be, may be purchased upon such exercise; |
| • | the designation and terms of the securities, if other than common stock, purchasable upon exercise of the warrants and of any securities, if other than common stock, with which the warrants are issued; |
| • | the procedures and conditions relating to the exercise of the warrants; |
| • | the date, if any, on and after which the warrants, and any securities with which the warrants are issued, will be separately transferable; |
| • | the offering price, if any, of the warrants; |
| • | the date on which the right to exercise the warrants will commence and the date on which that right will expire; |
| • | if applicable, a discussion of the material United States federal income tax considerations applicable to the exercise of the warrants; |
| • | whether the warrants represented by the warrant certificates will be issued in registered or bearer form and, if registered, where they may be transferred and registered; |
| • | call provisions, if any, of the warrants; |
| • | antidilution provisions, if any, of the warrants; and |
| • | any other material terms of the warrants. |
The description in the prospectus supplement will not necessarily be complete and will be qualified in its entirety by reference to the warrant agreement and warrant certificate relating to the warrants being offered.
Exercise of Warrants
Each warrant will entitle the holder to purchase for cash that principal amount of, or number of, securities, as the case may be, at the exercise price set forth in, or to be determined as set forth in, the applicable prospectus supplement relating to the warrants. Unless otherwise specified in the applicable prospectus supplement, warrants may be exercised at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement at any time up to 5:00 p.m., New York City time, on the expiration date set forth in the applicable prospectus supplement. After 5:00 p.m., New York City time, on the expiration date, unexercised warrants will become void. Upon receipt of payment and the warrant certificate properly completed and duly executed, we will, as soon as practicable, issue the securities purchasable upon exercise of the warrant. If less than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining amount of warrants.
No Rights of Security Holder Prior to Exercise
Before the exercise of their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon the exercise of the warrants, and will not be entitled to:
Exchange of Warrant Certificates
Warrant certificates will be exchangeable for new warrant certificates of different denominations at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement.
We may, from time to time, issue units comprised of one or more of the other securities that may be offered under this prospectus, in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and soldobligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately at any time, or at any time before a specified date.
Any applicable prospectus supplement may describe, among other things:
| • | the material terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
| • | any material provisions relating to the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; |
| • | any special United States federal income tax considerations applicable to the units; and |
| • | any material provisions of the governing unit agreement that differ from those described above. |
| 26 |
In addition to the securities we may offer with this prospectus, this prospectus also relates to the possible sale in one or more offerings from time to time by certain of our stockholders, to whom we refer as Selling Stockholders, of (i) up to an aggregate of 12,682,831 shares of our common stock, or the selling stockholder.merger shares, and (ii) up to an aggregate of 3,400,945 shares of our common stock issuable upon the exercise of our outstanding warrants, or the merger warrants. The selling stockholder will act
independently of us in making decisions with respect to the timing, manner and
size of each sale. The selling stockholderSelling Stockholders may sell the shares being offered
hereby on the Nasdaq Stock Market,all, a portion or otherwise, at prices and under terms then
prevailing, at prices related to the then current market price, or at negotiated
prices. Registrationnone of the shares does not necessarily mean that any of the
shares will be offered by the selling stockholder.
10
The selling stockholder has advised us that it is not a party to any
agreement or other understanding to distribute thetheir securities directly or
indirectly.
Shares may be soldregistered hereunder, at any time and from time to time, whentime.
The Selling Stockholders acquired the merger shares and merger warrants from the Company in a private transaction in March 2010 in connection with the Company’s acquisition of CHS. The Selling Stockholders will acquire, if so
determinedat all, some or all of the 3,400,945 shares of common stock issuable upon exercise of merger warrants, if any, in a private transaction between the Company and respective exercising Selling Stockholder. No merger warrants are registered hereunder. 793,800 shares of our common stock registered hereunder by the Selling Stockholders are held in escrow to satisfy the indemnification obligations of the Selling Stockholders in connection with the Company’s acquisition of CHS. The Selling Stockholders acknowledge that any such shares that are forfeited to us in accordance with the applicable escrow agreement may be de-registered by us pursuant to a post-effective amendment to the registration statement of which this prospectus forms a part.
We will pay all expenses incurred with respect to the registration of the securities owned by the Selling Stockholders, other than underwriting fees, discounts or commissions, which will be borne by the Selling Stockholders. We will provide you with a prospectus supplement naming the Selling Stockholders, the amount of shares to be sold and any other terms of the offering of shares of our common stock being sold by the Selling Stockholders.
| 27 |
We or any selling stockholder bymay sell the securities being offered hereby from time to time in one or more of the following meansways:
| • | through agents; |
| • | to or through underwriters; |
| • | to or through brokers or dealers; |
| • | in “at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market marker or into an existing trading market, on an exchange or otherwise; |
| • | directly to purchasers, including throughnegotiated sales or a specific bidding, auction or other process; or |
| • | through a combination of any of these methods of sale. |
Any selling stockholder may also sell his, her or its securities being offered hereby in accordance with Rule 144 under the Securities Act, or any other available exemption, rather than by use of distribution:
othis prospectus.
We will set forth in a prospectus supplement the terms of the offering of securities, including:
| • | the name or names of any agents, underwriters or dealers; |
| • | the purchase price of thesecurities being offered and the proceeds to be received from the sale; |
| • | any over-allotment options under which underwriters may purchase additionalsecurities; |
| • | any agency fees or underwriting discounts or commissions and other items constituting agents’ or underwriters’ compensation; |
| • | the public offering price; and |
| • | any discounts or concessions allowed or reallowed or paid to dealers. |
Underwriters, Agents and Dealers
We or any selling stockholder may designate agents who agree to use their reasonable efforts to solicit purchases for the period of their appointment or to sell our securities for which they have been appointed an agent on a continuing basis.
If we or any selling stockholder use underwriters for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale.
Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. The obligations of the underwriters to purchase our securities will be subject to the conditions set forth in the applicable underwriting agreement. The underwriters may change from time to time any initial public offering price and any discounts or concessions the underwriters allow or reallow or pay to dealers. We or any selling stockholder may use underwriters with whom we or any selling stockholder have a material relationship. We will describe in an applicable prospectus supplement the name of the underwriter and the nature of any such relationship.
If a dealer is utilized in the sale of securities in respect of which this prospectus is delivered, we or any selling stockholder will sell such securities to the dealer as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale. Transactions through brokers or dealers may include block trades in which the broker-dealer so engagedbrokers or dealers will attempt to sell such sharessecurities as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
o over-the-counter distributionstransaction or in accordance with the rules of the
NASD;
o ordinary brokerage transactions and transactionscrosses, in which the same broker solicits purchasers; and o privately negotiated transactions.
We will not receive anyor dealer acts as agent on both sides of the proceeds from the sale of shares by
the selling stockholder. We will bear all expenses in connection with the
registration of the common stock except that the selling stockholder will pay
all underwriting commissions and similar selling expenses, brokerage fees and
transfer taxes as well as fees of its counsel.
In connection with any distributions of the shares, the selling
stockholder may enter into hedging transactions with broker-dealers or other
financial institutions who may engage in short sales of our common stock in the
course of hedging the positions they assume with the selling stockholder. The
selling stockholder also may (i) sell the common stock short and redeliver the
shares to close outtrade. Any such short positions; (ii) enter into option or other
transactions with broker-dealers or other financial institutions which require
the delivery thereto of the shares offered hereby, which shares such
broker-dealer or other financial institutions may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction); or (iii)
pledge such shares to a broker-dealer or other financial institution, and, upon
a default, such broker-dealer or other financial institution, may effect sales
of such pledged shares pursuant to this prospectus (as supplemented or amended
to reflect such transaction). In addition, any such shares that qualify for sale
pursuant to Rule 144 under the Securities Act may be sold under that Rule rather
than pursuant to this prospectus.
In effecting sales, brokers, dealers or agents engaged by the
selling stockholder may arrange for other brokers or dealers to participate.
Brokers, dealers or agents may receive commissions, discounts or concessions
from the selling stockholder in amounts to be negotiated prior to the sale. Such
brokers or dealersdealer may be deemed to be "underwriters" within the meaning ofan underwriter, as such term is defined in the Securities Act, of the securities so offered and sold.
Underwriters, dealers and agents that participate in connection with such sales,the distribution of our securities may be underwriters as defined in the Securities Act, and any such commissions,
discounts or concessionscommissions they receive from us and any profit on their resale of the securities may be deemed to betreated as underwriting discounts orand commissions under the Securities Act. 11
In order to comply with the securities laws of certain states, the
shares must be sold in such states only through registered or licensed brokers
or dealers. In addition, in certain states shares may not be sold unless they
have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirements is availableUnderwriters, dealers and has been complied with.
The rules and regulations in Regulation M under the Exchange Act
provide that during the period that any person is engaged in the distribution
(as defined therein) of common stock, such person generally may not purchase
shares of our common stock. The selling stockholder may be subject to such
regulation which may limit the timing of its purchases and sales of shares of
the common stock.
At the time a particular offer of shares is made, if required, a
prospectus supplement will be distributed that will set forth the number of
shares being offered and the terms of the offering, including the name of any
underwriter, dealer or agent, the purchase price paid by any underwriter, any
discount, commission and other item constituting compensation, any discount,
commission or concession allowed or reallowed or paid to any dealer, and the
proposed selling price to the public.
We have agreed to indemnify the selling stockholder, and any person
controlling it, against certain liabilities, including liabilities under the
Securities Act. The selling stockholder has agreed to indemnify us and certain
related persons against certain liabilities, including liabilities under the
Securities Act.
We have agreed with the selling stockholder to keep the registration
statement, of which this prospectus constitutes a part, effective until the
earlier of the sale of all the shares or 90 days following the effective date of
the registration statement.
Agents, underwriters or dealersagents may engage in transactions with or perform services for us or our subsidiaries in the ordinary course of business.
VALIDITY OF COMMON STOCKtheir businesses.
Stabilization Activities
In connection with an offering through underwriters, an underwriter may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in the offering. “Covered” short sales are sales made in an amount not greater than the underwriters’ option to purchase additional securities from us in the offering, if any. If the underwriters have an over-allotment option to purchase additional securities from us, the underwriters may consider, among other things, the price of securities available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option. “Naked” short sales are any sales in excess of such option or where the underwriters do not have an over-allotment option. The underwriters must close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the securities in the open market after pricing that could adversely affect investors who purchase in the offering.
Accordingly, to cover these short sales positions or to otherwise stabilize or maintain the price of the securities, the underwriters may bid for or purchase securities in the open market and may impose penalty bids. If penalty bids are imposed, selling concessions allowed to syndicate members or other broker-dealers participating in the offering are reclaimed if securities previously distributed in the offering are repurchased, whether in connection with stabilization transactions or otherwise. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. The imposition of a penalty bid may also affect the price of the securities to the extent that it discourages resale of the securities. The magnitude or effect of any stabilization or other transactions is uncertain.
Direct Sales
We or any selling security holder may also sell securities directly to one or more purchasers without using underwriters or agents. In this case, no agents, underwriters or dealers would be involved. We may sell securities upon the exercise of rights that we may issue to our securityholders. We or any selling security holder may also sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale of those securities.
| 29 |
Unless otherwise indicated in a supplement to this prospectus, the validity of the common stock offered herebysecurities will be passed upon for us by Barry A. Posner, General Counsel of the Company.
Polsinelli Shughart PC, Chicago, Illinois.
The consolidated financial statements incorporatedof BioScrip, Inc. appearing in this
prospectus by reference to ourBioScrip, Inc.’s Annual Report on Form 10-K(Form 10-K) for the year ended December 31, 2000,2012 (including the schedule appearing therein), and the effectiveness of BioScrip, Inc.’s internal control over financial reporting as of December 31, 2012, have been audited by Arthur AndersenErnst & Young LLP, independent certifiedregistered public accountants,accounting firm, as indicatedset forth in their report with respect thereto
12
included in this documentincorporated herein by reference in reliance upon such reports given on the authority of saidsuch firm as experts in accounting and auditing.
13
================================================================================
2,697,947 Shares
MIM CORPORATION
Common Stock
--------------------------
PROSPECTUS
--------------------------
July 12, 2001
================================================================================
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Information Not Required in Prospectus
Item 14.Other Expenses Ofof Issuance Andand Distribution
SEC
The following is a statement of the expenses (all of which are estimated) to be incurred by us in connection with a distribution of securities registered under this registration fee...................................... $ 4,121
Legal fees and expenses................................... $20,000
Accounting fees and expenses.............................. $20,000
Printing expenses......................................... $ 5,000
Miscellaneous............................................. $ 879
-------
Total........................................... $50,000
=======
statement:
| SEC registration fee | $ | 53,914 | ||
| Legal fees and expenses | * | |||
| Accounting fees and expenses | * | |||
| Printing fees | * | |||
| Trustee’s fees and expenses | * | |||
| Miscellaneous | * | |||
| Total | $ | * |
| * | The estimated expenses are presently indeterminable and will be set forth in the applicable prospectus supplement with respect to any offering of securities registered hereunder. |
Item 15.Indemnification Ofof Directors Andand Officers
The following summary is qualified in its entirety by reference to the complete text of the statutes referred to below and the amended and restated certificate of incorporation and amended and restated bylaws of BioScrip, Inc. (“BioScrip”).
We are incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation law ("DGCL")Law provides that a Delaware corporation may indemnify any personpersons who wasare, or is a party or isare threatened to be made, a partyparties 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 thesuch corporation), by reason of the fact that he is
orsuch person was aan officer, director, officer, employee or agent of thesuch corporation, or is or was serving at the request of the corporationsuch person as aan officer, director, officer, employee or agent of another corporation partnership, joint venture, trust or other
enterprise, againstenterprise. The indemnity may include expenses (including attorneys'attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by himsuch person in connection with such action, suit or proceeding, if heprovided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. Section 145 further
provides that aillegal. A Delaware corporation similarly may indemnify any such person serving in
any such capacitypersons who wasare, or is a party or isare threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation to procureby reason of the fact that such person was a judgment in its favor, againstdirector, 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 or enterprise. The indemnity may include expenses (including attorneys'attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if heprovided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issueis permitted without judicial approval if the officer or matter as to which such person shall have beendirector is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred.
Section 6.01 of ouramended and restated bylaws makes mandatory that we will indemnify our directors and officers to the fullest extent permissible under the Delaware General Corporation Law. We are not required to indemnify any director or officer in connection with a proceeding brought by such director or officer unless (i) such indemnification is expressly required by law; or (ii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the Delaware General Corporation Law.
| II-1 |
Article Eighth of ouramended and onlyrestated certificate of incorporationprovides that our directors shall have no personal liability to the Company or to its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that Section 102(b)(7) (or any successor or additional provision) of the Delaware CourtGeneral Corporation Law, as amended from time to time, expressly provides that the liability of Chancerya director may not be eliminated 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 indemnify for such expenses which the Court of Chancery or such
other court shall deem proper.
limited.
Section 102(b)(7) of the DGCLDelaware General Corporation Law permits a corporation to provide in its certificate of incorporation to limit or eliminate, subject to some statutory
limitations,that a director of the liability of directorscorporation shall not be personally liable 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. MIM's restated Certificate of Incorporation provides
that MIM's directors shall not be liable to the company or its stockholders for
breach of fiduciary dutyduties as a director, except for liability arising out of
clauses (a) through (d)for any:
| · | transaction from which the director derives an improper personal benefit; | |
| · | act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; | |
| · | unlawful payment of dividends or redemption of shares; or | |
| · | breach of a director’s duty of loyalty to the corporation or its stockholders. |
In addition, the preceding paragraph. The Certificate of
IncorporationDelaware General Corporation Law and MIM's by-laws further provide that MIM shall indemnify itsouramended and restated bylaws authorize us to purchase insurance for our directors and officers insuring them against certain risks as to which we may be unable lawfully to indemnify them. We have purchased insurance coverage for our directors and officers as well as insurance coverage to reimburse us for potential costs of corporate indemnification of our directors and officers, including liabilities arising under the fullest extent permitted by the DGCL. In addition,
MIM maintains director and officer liability insurance policies.
Securities Act.
Item 16.Exhibits
3.1 -- Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to
the Registrant's Registration Statement on Form S-1, File No. 333-05327).
3.2 -- Amended and Restated By-Laws of the Registrant (incorporated by reference to Exhibit 3(ii) to the Company's
Quarterly Report on Form 10-Q for the period ended March 31, 1998).
4.1 -- Amended and Restated Rights Agreement dated as of May 20, 1999, between the Registrant and American Stock Transfer
and Trust Company (incorporated by reference to Exhibit 4.1 to Post-Effective Amendment No. 2 to the Registrant's
Form 8-A/A dated May 20, 1999).
4.2 -- Purchase Agreement among American Disease Management Associates, L.L.C., its Members and Certain Related Partners,
MIM Health Plans, Inc. and the Registrant, dated as of August 3, 2000 (incorporated by reference to Exhibit 2.1 to
the Registrant's Current Report on Form 8-K filed August 10, 2000).
4.3 -- Registration Rights Agreement between the Registrant and Livingston Group LLC dated as of August 3, 2000
(incorporated by reference to Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed August 10, 2000).
5.1 -- Opinion of Barry A. Posner.
23.1 -- Consent of Barry A. Posner (included as part of opinion
filed as Exhibit 5.1).
23.2 -- Consent of Arthur Andersen LLP.
The exhibits to this registration statement are listed in the exhibit index that immediately precedes such exhibits and is incorporated herein by reference.
Item 17.Undertakings
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 the
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
20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee"
| (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 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective |
| (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), (1)(ii) and (a)(l)(ii)(1)(iii) above do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the 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.
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
| II-2 |
(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.
The
(4) That, for the purpose of determining liability under the Securities Act, to any purchaser:
| (i) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant hereby undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(6) That, for purposes of determining any liability under the Securities Act, of 1933, each filing of the registrant'sregistrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act, (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934Act) 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.
| II-3 |
(7) 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, described under Item 15
above, 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 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
(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
| II-4 |
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-3 and has duly caused this registration
statementRegistration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the cityCity of Elmsford, State of New York, on July 11, 2001.
MIM CORPORATION
By: /s/ Barry A. Posner
---------------------------------------------
Barry A. Posnerthe 18th day of March, 2013.
| BIOSCRIP, INC. | |||
| By: | /s/ Kimberlee Seah | ||
| Name: | Kimberlee Seah | ||
| Title: | Senior Vice President, Secretary and General Counsel | ||
Each of the undersigned whose signature appears below hereby constitutes and General Counsel
appoints Hai Tran andKimberlee Seah and each of them acting alone, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his 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 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 Statementregistration statement has been signed by the following persons in the capacities indicatedand on the 11th day of July, 2001.
SIGNATURE TITLE
/s/ Richard H. Friedman Chairman of the Board, Chief
- --------------------------------------- Executive Officer and Director
Richard H. Friedman (Principal Executive Officer)
/s/ Juliet A. Palmer (Principal Financial Officer and
- --------------------------------------- Principal Accounting Officer)
Juliet A. Palmer
/s/ Richard A. Cirillo Director
- ---------------------------------------
Richard A. Cirillo
/s/ Louis DiFazio Director
- ---------------------------------------
Louis DiFazio
/s/ Harold J. Ford, Sr. Director
- ---------------------------------------
Harold J. Ford, Sr.
/s/ Michael Kooper Director
- ---------------------------------------
Michael Kooper
/s/ Louis A. Luzzi Director
- ---------------------------------------
Louis A. Luzzi
/s/ Ronald K. Shelp Director
- ---------------------------------------
Ronald K. Shelp
| Signature | Title(s) | |
| /s/ Richard M. Smith | President, Chief Executive Officer and Director | |
| Richard M. Smith | (Principal Executive Officer) | |
| /s/ Hai Tran | Senior Vice President, Chief Financial Officer and Treasurer | |
| Hai Tran | (Principal Financial Officer) | |
| /s/ Patricia Bogusz | Vice President, Finance | |
| Patricia Bogusz | (Principal Accounting Officer) | |
| /s/ Myron Z. Holubiak | Chairman of the Board and Director | |
| Myron Z. Holubiak | ||
| /s/ Charlotte W. Collins | Director | |
| Charlotte W. Collins | ||
| /s/ Samuel P. Frieder | Director | |
| Samuel P. Frieder | ||
| /s/ David R. Hubers | Director | |
| David R. Hubers | ||
| /s/ Richard L. Robbins | Director | |
| Richard L. Robbins | ||
| /s/ Stuart A. Samuels | Director | |
| Stuart A. Samuels | ||
| /s/ Gordon H. Woodward | Director | |
| Gordon H. Woodward |
| II-5 |
EXHIBIT INDEX
| Exhibit | Description | |
| 1.1 | Form of underwriting agreement (for equity securities)* | |
| 1.2 | Form of underwriting agreement (for debt securities)* | |
| 2.1 | Agreement and Plan of Merger, dated as of August 9, 2004, among MIM Corporation, Chronimed Acquisition Corp. and Chronimed Inc., incorporated by reference to Exhibit 99.2 to the Company’s Form 8-K filed on August 9, 2004 | |
| 2.2 | Amendment No. | |
| 2.3 | Agreement and Plan of Merger, dated as of January 24, 2010, by and among the Company, Camelot Acquisition Corp. (now known as CHS Holdings, Inc.), Critical Homecare Solutions Holdings, Inc., 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., incorporated by reference to Exhibit 2.1 to the Company’s Form 8-K filed on January 27, 2010 | |
| 3.1 | Second Amended and Restated Certificate of Incorporation, incorporated by reference to Exhibit 4.1 to the Company’s Form 8-K filed on March 17, 2005 | |
| 3.2 | Amendment to Second Amended and Restated Certificate of | |
| 3.3 | Amended and Restated | |
| 4.1 | Specimen Common Stock Certificate, incorporated by reference to Exhibit 4.1 to the | |
| 4.2 | Specimen Preferred Stock Certificate* | |
| 4.3 | Form of Indenture relating to Debt Securities | |
| 4.4 | Form of Debt Securities* | |
| 4.5 | Specimen Warrant Certificate* | |
| 4.6 | Form of Warrant Agreement* | |
| 4.7 | Specimen Unit Certificate* | |
| 4.8 | Form of Unit Agreement* | |
| 5.1 | Opinion of | |
| 12 | Computation of Ratio of Earnings to Fixed Charges |
| II-6 |
| 23.1 | Consent of | |
| 23.2 | Consent ofPolsinelli ShughartPC(included in Exhibit 5.1) | |
| 24.1 | Powers of Attorney (included on signature page of the Registration Statement) | |
| 25.1 | Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as |
| * | To be filed either by amendment to the Registration Statement or as |
| II-7 |