Item 1.01. Entry into a Material Definitive Agreement.
The First Amendment to the Asset Purchase Agreement
On June 16, 2016, BioScrip, Inc. (the “Company”)
entered into an amendment dated June 16, 2016, to the Asset Purchase Agreement, dated June 11, 2016 (“the First Amendment
to the Asset Purchase Agreement”), by and among the Company, HomeChoice Partners, Inc., a Delaware corporation and a wholly
owned subsidiary of the Company, HS Infusion Holdings, Inc., a Delaware corporation (“Home Solutions”) and each of
the subsidiaries of Home Solutions set forth on the signature pages to the Asset Purchase Agreement (collectively, the “Home
Solutions Subsidiaries” and together with Home Solutions, the “Sellers”). As previously disclosed in the Company’s
Current Report on Form 8-K, filed with the SEC on June 13, 2016, under the Asset Purchase Agreement, the Company agreed to acquire
substantially all of the assets and assume certain liabilities of the Sellers (the “Transaction”).
Pursuant to the First Amendment to the
Asset Purchase Agreement, the Company and the Sellers have, among other things, agreed to reduce the total consideration payable
at closing in the Transaction from $85.0 million to $75.0 million. The aggregate consideration to be paid by Buyer to the Sellers
in the Transaction shall be equal to:
(i) an amount of $67.5
million dollars, plus or minus the Net Working Capital Adjustment amount (as defined in the Asset Purchase Agreement); plus
(ii)
(a) the number of shares of BioScrip common stock equal to the quotient of $7.5 million, divided by the per share price to the
public in the Company’s previously announced public equity offering and (b) the right to receive contingent equity securities
of the Company, in the form of restricted shares of our common stock, issuable by BioScrip to the Sellers in two tranches, Tranche
A and Tranche B, with different vesting conditions
.
The number
of shares of BioScrip common stock in Tranche A will be equal to the quotient of $12.375 million, divided by $4.00. The number
of shares of BioScrip common stock in Tranche B will be equal to the quotient of $20.000 million, divided by $5.00.
The First Amendment to the Asset Purchase
Agreement also amends the definition of Escrow Amount under the Asset Purchase Agreement to mean an amount equal to $5.0 million
of shares of our common stock based on the per share price to the public in the Company’s previously announced public equity
offering.
The consummation of the Transaction is
subject to customary closing conditions, including, but not limited to, the Company obtaining stockholder approval to increase
the number of shares of Common Stock that the Company is authorized to issue pursuant to its certificate of incorporation, the
absence of legal orders prohibiting the consummation of the Transaction, the absence of conditions or circumstances constituting
a business material adverse effect with respect to Home Solutions, receipt of approval, or termination of the waiting period, under
the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended, the accuracy of the representations and warranties of the
parties, the parties’ performance and compliance in all material respects with the agreements and covenants contained in
the Asset Purchase Agreement and the parties’ attainment of certain third-party consents under material agreements.
In addition, under the terms of the Asset
Purchase Agreement, Home Solutions has the right to terminate the Asset Purchase Agreement if an equity offering is not completed
with gross proceeds of at least $70.0 million within the 17 days following June 11, 2016, the date of the Asset Purchase Agreement.
The Company’s obligation to consummate the Transaction is conditioned upon the completion of an equity offering with gross
proceeds of at least $70.0 million. The Company intends to fund the cash consideration for the Transaction and pay fees and expenses
in connection with the Transaction with the net proceeds from the equity offering previously announced by the Company on June 13,
2016.
A copy of the First Amendment to the Asset
Purchase Agreement is filed as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference. We encourage
you to read the Asset Purchase Agreement, as amended, for a more complete understanding of the Transaction. The foregoing description
of the First Amendment to the Asset Purchase Agreement does not purport to be complete and is qualified in its entirety by reference
to the full text of the First Amendment to the Asset Purchase Agreement.