FIRST AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
Exhibit
10.1
THIS FIRST AMENDMENT (this “Amendment”) is made as of December 13, 2006 between
Bioscrip, Inc. (f/k/a/ MIM Corporation), a Delaware corporation (the “Company”), and
American Stock Transfer & Trust Company, a New York corporation (the “Rights Agent”). This
Amendment amends the Amended and Restated Rights Agreement, dated as of December 3, 2002, between
the Company and the Rights Agent (the “Rights Agreement”). Capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Rights Agreement.
WHEREAS, the Rights Agreement provides for the occurrence of certain events on the
Distribution Date if a Person becomes the Beneficial Owner of 15% or more of the shares of Company
Common Stock then outstanding;
WHEREAS, on December 8, 2006, Heartland Advisors, Inc. (“Heartland”) filed an amended
Schedule 13G with the Securities and Exchange Commission announcing that Heartland had become the
beneficial owner of 18.5% of the outstanding shares of Company Common Stock; and
WHEREAS, the Company desires to amend the Rights Agreement in accordance with Section 26
thereof to allow for such acquisition by Heartland without Heartland being deemed an Acquiring
Person under the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein,
the parties hereby agree to amend the Rights Agreement as follows:
1. Amendment of Section 1, definition of “Acquiring Person”. The definition of
“Acquiring Person” in Section 1 of the Rights Agreement is amended to read as follows:
““Acquiring Person” shall mean any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan maintained by the
Company or any of its Subsidiaries or any trustee or fiduciary with respect
to such a plan acting in such capacity) who or which, alone or together with
all Affiliates and Associates of such Person, is the Beneficial Owner of 15%
or more of the shares of Company Common Stock then outstanding; provided,
however, that Heartland Advisors, Inc. (“Heartland”) shall not be deemed to
be an Acquiring Person unless it is, alone or together with its Affiliates
and Associates, the Beneficial Owner of 20% or more of the shares of Company
Common Stock then outstanding. Notwithstanding the foregoing, (i) no Person
shall become an “Acquiring Person” as a result of an acquisition of Company
Common Stock by the Company which, by reducing the number of shares of the
Company Common Stock outstanding, increases the proportionate number of shares Beneficially Owned by such
Person to 15% or more (or 20% or more in the case of Heartland) of the
Company Common Stock then outstanding; provided, however, that if a Person
shall become the Beneficial Owner of 15% or more (or 20% or more in the case
of Heartland) of the Company Common Stock by reason of share purchases by
the Company and shall, after such share purchases by the Company, become the
Beneficial Owner of any additional Company Common Stock other than as a
direct or indirect result of any corporate action taken by the Company, then
such Person shall be deemed to be an “Acquiring Person”; and (ii) if a
majority of the Board determines in good faith that a Person who would
otherwise be an “Acquiring Person,” as defined pursuant to the first
sentence of this definition, has become such inadvertently (including,
without limitation, because (a) such Person was unaware that it Beneficially
Owned 15% or more of the Company Common Stock or (b) such Person was aware
of the extent of such Beneficial Ownership but such Person acquired
Beneficial Ownership of such shares of Company Common Stock without the
intention to change or influence the control of the Company and without
actual knowledge of the consequences of such Beneficial Ownership under this
Agreement), and such Person divests itself as promptly as practicable of a
sufficient number of shares of Company Common Stock so that such Person
would no longer be an “Acquiring Person,” as defined pursuant to the first
sentence of this definition, then such Person shall not be deemed to be, or
have been, an “Acquiring Person” for any purposes of this Agreement, and no
Stock Acquisition Date shall be deemed to have occurred. All questions as to
whether a Person who would otherwise be an Acquiring Person has become such
inadvertently shall be determined in good faith by the Board, which
determination shall be conclusive for all purposes.”
2. Effectiveness. This Amendment shall be deemed effective as of the date first
written above. Except as expressly amended hereby, all of the terms and provisions of the Rights
Agreement are and shall remain in full force and effect and shall be otherwise unaffected by this
Amendment.
3. Severability. If any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain
in full force and effect and shall in no way be affected, impaired or invalidated.
4. Governing Law. This Amendment shall be deemed to be a contract made under the laws
of the State of Delaware and for all purposes shall be governed by and construed in accordance with
the laws of such State applicable to contracts to be made and performed entirely within such State.
5. Counterparts. This Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument
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6. Descriptive Headings. Descriptive headings of the several Sections of this
Amendment are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.
| BIOSCRIP, INC. |
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| By | ||||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President, Secretary and General Counsel |
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| AMERICAN STOCK TRANSFER & TRUST COMPANY |
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| By | ||||
| Name: | ||||
| Title: | ||||
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