ex44.htm


    
      

      

    

     

    
 

    SECOND
AMENDMENT

    TO

    AMENDED
AND RESTATED

    RIGHTS AGREEMENT

    


    THIS SECOND AMENDMENT
(this “Amendment”) is made as of March 4, 2009 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 or 20% or more of the shares of Company Common
Stock then outstanding in the case of Heartland Advisors, Inc.
(“Heartland”);

     

    WHEREAS, based on information
contained in an amended Schedule 13G filed by Heartland with the Securities and
Exchange Commission on February 11, 2009, Heartland currently owns 18.9% of the
outstanding shares of Company Common Stock;

     

    WHEREAS, Heartland would like
to acquire additional shares of Company Common Stock such that Heartland’s
ownership would exceed 20% of the outstanding shares of Company Common Stock;
and

     

    WHEREAS, the Company desires
to further 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 22.5% 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 22.5% 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 22.5% 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 (or 22.5% or more in the case of Heartland) 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.

     

    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.

                

    
 

                               By:  /s/ Barry A. Posner                                                                                   

                                        Name:
Barry A. Posner

                                        Title:  Executive
Vice President, Secretary

                          
               
and General
Counsel                                                        

     

    


    


                               AMERICAN STOCK TRANSFER
& TRUST
COMPANY

    


    


    


                               By:  /s/ Joseph Wolf                                                                                   

                                        Name: Joseph
Wolf

                                        Title: Vice
President

     

     

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