SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
POST-EFFECTIVE AMENDMENT NO. 3
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
MIM CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 05-0489664
(State of Incorporation (I.R.S. Employer
Incorporation or Organization) Identification No.)
100 CLEARBROOK ROAD 10523
ELMSFORD, NEW YORK (Zip Code)
(Address of principal executive offices)
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box |_|
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box |X|
Securities Act registration statement file number to which this Form relates:
None
Securities to be registered pursuant to Section 12(b) of the Act: None
Title of Each Class Name of each exchange on
to be so Registered which each class is to be registered
------------------- ------------------------------------
None
Securities to be registered pursuant to Section 12(g) of the Act:
Series A Junior Participating Preferred Stock Purchase Rights
(Title of Class)
INFORMATION REQUIRED IN REGISTRATION STATEMENT
By resolution adopted on November 26, 2002, the Board of Directors (the
"Board") of MIM Corporation (the "Company") amended and restated the Rights
Agreement, dated as of November 24, 1998, as amended on December 14, 1998 and
May 20, 1999, between the Company and American Stock Transfer and Trust Company,
as Rights Agent.
The amendment and restatement of the Rights Agreement was not in
response to any action by a third party. Rather, the Board amended the Rights
Agreement to bring it up to date with the current needs of the Company and to
ensure that all the Company's stockholders are treated fairly in the event of an
unsolicited takeover of the Company or other tactics intended to gain control of
the Company without maximizing stockholder value. The amendments to the
Company's Rights Agreement were made after a routine review of the Rights
Agreement which is performed by the Company from time to time and include: (i)
removal of the "Permitted Offer" feature; (ii) removal of references to
"Continuing Director" approvals; (iii) removal of the "40% Person" test; and
(iv) extension of the expiration date from November 24, 2008 to November 24,
2012.
In accordance with the Board's resolution, on December 3, 2002, the
Company and the Rights Agent executed and delivered an Amended and Restated
Rights Agreement (the "Amended and Restated Rights Agreement"), which is filed
as Exhibit 4.1 to this Post-Effective Amendment No. 3 on Form 8-A/A.
On December 4, 1998, the Company filed a Registration Statement on Form
8-A (as amended on December 14, 1998 by Post-Effective Amendment No. 1 on Form
8-A/A thereto and on May 20, 1999 by Post-Effective Amendment No. 2 on Form
8-A/A thereto, the "Registration Statement") to register the Series A Junior
Participating Preferred Stock Purchase Rights issuable under the Rights
Agreement under the Securities Exchange Act of 1934. The description of the
Rights contained in Item 1 of the Registration Statement is hereby deleted in
its entirety and replaced with the description of the Rights set forth in Item 1
to this Post-Effective Amendment No. 3 to the Registration Statement on Form
8-A/A. The Amended and Restated Rights Agreement (including the form of Rights
Certificate and Certificate of Designations of Preferred Stock as exhibits
thereto) is attached hereto as Exhibit 4.1 and is incorporated herein by
reference in its entirety.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On November 24, 1998, the Board originally declared a dividend
distribution of one right (a "Right") for each outstanding share of the
Company's common stock, par value $.0001 per share ("Company Common Stock"), to
stockholders of record at the close of business on December 4, 1998 (the "Record
Date") and for each share of Company Common Stock issued (including shares
distributed from the Company's treasury) by the Company from and after the
Record Date up to, but not including, the Distribution Date (as defined below).
The description and terms of the Rights are set forth in an Amended and Restated
Rights Agreement, dated as of December 3, 2002 (the "Amended and Restated Rights
Agreement"), between the Company and American Stock Transfer & Trust Company, as
Rights Agent. The Amended and Restated Rights Agreement amends and restates the
original Rights Agreement, dated as of November 24, 1998, as amended on December
14, 1998 and May 20, 1999 (the "Original Rights Agreement").
Each Right entitles the registered holder, subject to the terms of the
Amended and Restated Rights Agreement, to purchase from the Company one
one-thousandth of a share (a "Unit") of Series A Junior Participating Preferred
Stock, par value $.0001 per share ("Preferred Stock"), of the Company, at a
purchase price of $20.00 per share, in cash (the "Purchase Price"), subject to
adjustment as more fully set forth below. In general, each Unit has
substantially the same economic attributes and voting rights as one share of
Company Common Stock.
The following summary description of the Rights and the Preferred Stock
does not purport to be complete and is qualified in its entirety by reference to
all the terms and provisions of the Amended and Restated Rights Agreement as
well as to the Certificate of Designations of Series A Junior Participating
Preferred Stock filed with the Delaware Secretary of State on December 4, 1998,
including the definitions therein of certain terms.
DESCRIPTION OF THE RIGHTS
Initially, the Rights will attach to all certificates representing
shares of outstanding Company Common Stock, and no separate Rights certificates
will be distributed; the Rights will not be separately traded. The Rights will
separate from the Company Common Stock and Rights certificates will be
separately distributed (the "Distribution Date") and the Rights will be
separately traded upon the earliest to occur of (i) ten (10) business days (or,
subject to certain limitations, such later date as may be determined by action
of the Board prior to such time) following a public announcement (the date of
such announcement being the "Stock Acquisition Date") that (a) a person or group
of affiliated or associated persons (an "Acquiring Person") has acquired,
obtained the right to acquire, or otherwise obtained beneficial ownership of 15%
or more of the then outstanding shares of Company Common Stock or (b) the Board
has, in accordance with the criteria set forth in the Amended and Restated
Rights Agreement, declared a person who beneficially owns at least 10% of the
then outstanding shares of Company Common Stock to be an "Adverse Person," (ii)
ten (10) business days (or, subject to certain limitations, such later date as
may be determined by action of the Board prior to such time) following the
commencement of a tender offer or exchange offer that would result in a person
or group beneficially owning 15% or more of the then outstanding shares of
Company Common Stock and (iii) the occurrence of a Flip-Over Event (as defined
below). Until the Distribution Date, (i) the Rights will be evidenced solely by
Company Common Stock certificates and will be transferred with and only with
such Company Common Stock certificates, (ii) new Company Common Stock
certificates issued after the Record Date (including shares distributed from the
Company's treasury) will contain a notation incorporating the Amended and
Restated Rights Agreement by reference and (iii) the surrender for transfer of
any Company Common Stock certificates will also constitute the transfer of the
Rights associated with the Company Common Stock evidenced by such certificates.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on November 24, 2012, unless the Rights are
earlier redeemed or exchanged by the Company as described below.
As soon as practicable after the Distribution Date, separate
Certificates evidencing the Rights ("Rights Certificates") will be mailed to
holders of record of Company Common Stock as of the close of business on the
Distribution Date and, thereafter, the separate Rights Certificates alone will
represent the Rights.
In the event (a "Flip-In Event") that (i) a person becomes an Acquiring
Person (other than pursuant to a Flip-Over Event), (ii) the Board declares a
person to be an Adverse Person, (iii) the Company is the surviving corporation
in a merger with an Acquiring Person in which shares of Company Common Stock
shall remain outstanding, (iv) an Acquiring Person or an Adverse Person engages
in one or more "self-dealing" transactions specified in the Amended and Restated
Rights Agreement, or (v) during such time that an Acquiring Person or an Adverse
Person exists, an event occurs which results in such Acquiring Person's or
Adverse Person's ownership interest being increased by more than 1% (e.g., by
means of a reverse stock split or recapitalization), then, in each such case,
each holder of a Right will thereafter have the right to receive, upon exercise,
Units (or, in certain circumstances, cash, property or other securities of the
Company) having a value equal to two times the exercise price of the Right. The
exercise price is the Purchase Price multiplied by the number of Units issuable
upon exercise of a Right prior to the Flip-In Event. Notwithstanding the
foregoing, following the occurrence of any Flip-In Event all Rights that are, or
(under certain circumstances specified in the Amended and Restated Rights
Agreement) were, beneficially owned by any Acquiring Person or Adverse Person
(or by certain related parties) will be null and void.
In the event (a "Flip-Over Event") that, at any time following the
Stock Acquisition Date, (i) the Company is acquired in a merger or other
business combination transaction and the Company is not the surviving
corporation, (ii) any person consolidates or merges with the Company and all or
part of the Company Common Stock is converted or exchanged for securities, cash
or property of any other Person, or (iii) 50% or more of the Company's assets or
earning power is sold or transferred, then, in each such case, each holder of a
Right (except Rights which previously have been voided as described above) shall
be entitled to receive, upon exercise, common stock of the Acquiring Person or
Adverse Person having a value equal to two times the exercise price of the
Right.
The Purchase Price payable, and the number of Units issuable, upon
exercise of the Rights are subject to adjustment from time to time to prevent
economic and voting rights dilution (i) in the event of a stock dividend on, or
a subdivision, combination or reclassification of, the Company Common Stock,
(ii) if holders of the Company Common Stock are granted certain rights or
warrants to subscribe for Company Common Stock or convertible securities at less
than the current market price of the Company Common Stock, or (iii) upon the
dividend or distribution, as the case may be, of evidences of indebtedness, cash
or assets (excluding regular quarterly cash dividends) or of subscription rights
or warrants (other than those referred to above) to the holders of the Company
Common Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. The Company is not required to issue fractional Units. In lieu thereof,
an adjustment in cash may be made based on the market price of the Company
Common Stock prior to the date of exercise.
At any time prior to the Distribution Date, the Company, by action of
the Board, may redeem the Rights in whole, but not in part, at a price of $.0001
per Right (the "Redemption Price"), subject to adjustment in certain events,
payable, at the election of the Board, in cash, shares of Company Common Stock
or such other form of consideration as the Board may determine. Immediately upon
effectiveness of the action of the Board ordering the redemption of the Rights,
the Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price. The ten-day period of redemption between the Stock
Acquisition Date and the Distribution Date may be extended by the Board so long
as the Rights are then redeemable.
At any time prior to the Distribution Date, the Company may exchange
the Rights (other than Rights owned by an Acquiring Person or an Adverse Person,
or an affiliate or an associate of an Acquiring Person or an Adverse Person,
which will have become null and void), in whole or in part, for shares of
Company Common Stock at an exchange ratio determined as provided in the Amended
and Restated Rights Agreement.
Until a Right is exercised, the holder thereof will have no rights as a
stockholder of the Company with respect to such Right, including, without
limitation, the right to vote or to receive dividends. Following exercise of a
Right, the holder's rights will be determined by the type of consideration
received upon the exercise. Although the distribution of the Rights should not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Units (or other consideration) or are exchanged as provided in
the preceding paragraph.
The provisions of the Amended and Restated Rights Agreement may be
amended without the approval of the holders of Company Common Stock at any time
prior to the Distribution Date. After the Distribution Date, the provisions of
the Amended and Restated Rights Agreement may be amended in order to (i) cure
any ambiguity, defect or inconsistency, (ii) make changes which do not adversely
affect the interests of holders of Rights (excluding the interests of any
Acquiring Person or Adverse Person), or (iii) shorten or lengthen any time
period under the Amended and Restated Rights Agreement; provided, however, that
no amendment to adjust the time period governing redemption may be made after
the Rights are no longer redeemable.
A copy of the Amended and Restated Rights Agreement is attached as
Exhibit 4.1 to this Post-Effective Amendment No. 3 on Form 8-A/A. A copy of the
Amended and Restated Rights Agreement also is available free of charge from the
Company, 100 Clearbrook Road, Elmsford, New York 10523, Attention: General
Counsel. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
ITEM 2. EXHIBITS.
4.1 Amended and Restated Rights Agreement, dated as of December 3, 2002,
between MIM Corporation and American Stock Transfer and Trust Company,
as Rights Agent (including the form of rights certificate and
certificate of designation).
4.2 Letter to Stockholders of MIM Corporation, dated as of December 4,
2002.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Post-Effective Amendment No. 3
to the registration statement to be signed on its behalf by the undersigned,
thereto duly authorized.
MIM Corporation
By: /s/ Barry A. Posner
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Name: Barry A. Posner
Title: Executive Vice President
Date: December 4, 2002
INDEX TO EXHIBITS
Exhibit Number Description of Exhibits
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4.1 Amended and Restated Rights Agreement, dated as of December
3, 2002, between MIM Corporation and American Stock Transfer
and Trust Company, as Rights Agent (including the form of
rights certificate and certificate of designations).
4.2 Letter to Stockholders of MIM Corporation, dated as of
December 4, 2002.