UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
 
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) June 10, 2010
BioScrip, Inc.
(Exact Name of Registrant as Specified in its Charter)
         
Delaware   0-28740   05-0489664
(State or Other Jurisdiction of
Incorporation) 		  (Commission
File Number) 		  (IRS Employer
Identification No.)
     
100 Clearbrook Road, Elmsford, New York   10523
(Address of Principal Executive Offices)   (Zip Code)
Registrant’s telephone number, including area code (914) 460-1600
 
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o      Written communications pursuant to Rule 425 under the Section Act (17 CFR 230.425)
o      Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12).
o      Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240-14d-2(b)).
o      Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)).
 
 

 

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On June 10, 2010, at the Annual Meeting of Stockholders (the “Annual Meeting”) of BioScrip, Inc. (the “Company”), the Company’s stockholders approved an amendment to the Company’s 2008 Equity Incentive Plan to increase the number of authorized shares of common stock available for issuance thereunder by 3,275,000, from 3,580,000 shares to 6,855,000 shares. The material terms of the 2008 Equity Incentive Plan, as amended (the “Plan”), are summarized in the Company’s definitive proxy statement filed with the Securities and Exchange Commission on May 10, 2010 (the “Proxy Statement”) and are incorporated herein by reference. A copy of the Plan is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
At the Annual Meeting, the Company’s stockholders voted on a proposal to elect the following persons as directors of the Company to serve until the Company’s next annual meeting of stockholders: Charlotte W. Collins, Louis T. DiFazio, Samuel P. Frieder, Richard H. Friedman, Myron Z. Holubiak, David R. Hubers, Richard L. Robbins, Stuart A. Samuels, Richard M. Smith and Gordon H. Woodward. At the Annual Meeting the Company’s stockholders also voted on proposals to (i) amend the Company’s Second Amended and Restated Certificate of Incorporation to increase the number of shares of common stock that the Company is authorized to issue from 75 million shares to 125 million shares, (iii) amend the Company’s 2008 Equity Incentive Plan to increase the number of authorized shares of common stock available for issuance under the 2008 Equity Incentive Plan by 3,275,000, from 3,580,000 shares to 6,855,000 shares; and (iv) ratify the appointment of Ernst & Young LLP as the Company’s independent auditors for the year ending December 31, 2010. The results of the voting on each proposal are set forth below. A copy of the amendment to the Company’s Second Amended and Restated Certificate of Incorporation is filed as Exhibit 3.1 to this Current Report on Form 8-K.
The results of the vote for election of directors were as follows:
                 
    Number of Shares Voted
Director   For   Withheld
Charlotte W. Collins
    40,655,675       5,815,057  
Louis T. DiFazio
    46,328,109       142,623  
Samuel P. Frieder
    43,782,751       2,687,981  
Richard H. Friedman
    46,156,383       314,349  
Myron Z. Holubiak
    45,017,496       1,453,236  
David R. Hubers
    46,297,351       173,381  
Richard L. Robbins
    46,290,134       180,598  
Stuart A. Samuels
    45,080,024       1,390,708  
Richard M. Smith
    46,351,712       119,020  
Gordon H. Woodward
    38,387,859       8,082,873  
The results of the vote on the proposal to amend the Company’s Amended and Restated Certificate of Incorporation to increase the number of shares of common stock that the Company is authorized to issue from 75 million shares to 125 million shares were as follows:
Number of Shares Voted
             
For   Against   Withheld   Non Vote
47,710,712
  2,529,006   52,243   0
The results of the vote on the proposal to amend the Company’s 2008 Equity Incentive Plan to increase the number of authorized shares of common stock available for issuance under the 2008 Equity Incentive Plan by 3,275,000, from 3,580,000 shares to 6,855,000 shares were as follows:
Number of Shares Voted
             
For   Against   Withheld   Non Vote
42,203,665   4,229,439   37,628   3,821,234

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The results of the vote on the proposal to ratify the appointment of Ernst & Young LLP as the Company’s independent auditors for the year ending December 31, 2010 were as follows:
Number of Shares Voted
             
For   Against   Withheld   Non Vote
49,674,339   611,134   6,493   0
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
     
Exhibit No.   Description
 
   
3.1
  Amendment to the Second Amended and Restated Certificate of Incorporation.
 
   
4.1
  2008 Equity Incentive Plan (incorporated by reference to Exhibit B to the Company’s Proxy Statement on Schedule 14A as filed with the SEC on May 10, 2010).
 
   
99.1
  Pages 12-20 from the Company’s Proxy Statement on Schedule 14A as filed with the SEC on May 10, 2010 containing a description of the Company’s 2008 Equity Incentive Plan.

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SIGNATURES
     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned duly authorized.
         
Date: June 10, 2010  BIOSCRIP, INC.
  		 
  By:   /s/ Barry A. Posner    
    Barry A. Posner,   
    Executive Vice President, Secretary
and General Counsel  		 
 

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Exhibit 3.1
CERTIFICATE OF AMENDMENT OF
THE SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BIOSCRIP, INC.
It is hereby certified that:
          1. The name of the corporation (hereinafter called the “Corporation”) is BioScrip, Inc.
          2. The certificate of incorporation of the Corporation is hereby amended by striking out Article FOURTH thereof and by substituting in lieu of said Article the following new Article:
     “FOURTH: The total number of shares of capital stock which the Corporation shall have authority to issue is one hundred thirty million (130,000,000) shares, par value one-one hundredth of a cent ($0.0001) per share, of which one hundred twenty five million (125,000,000) shares are designated as Common Stock and five million (5,000,000) shares are designated as Preferred Stock.”
          3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
          Dated: June 10, 2010
         
     
  /s/ Barry A. Posner    
  Barry A. Posner, Executive Vice President