AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 24, 2003
REGISTRATION NO. 333-_____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT of 1933
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MIM Corporation
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 05-0489664
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Clearbrook Road
Elmsford, New York 10523
(914) 460-1600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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MIM Corporation 2001 Incentive Stock Plan
(Full title of the Plan)
Barry A. Posner
MIM Corporation
100 Clearbrook Road
Elmsford, New York 10523
(914) 460-1600
--
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--
Copies requested to:
E. William Bates, II
King & Spalding LLP
1185 Avenue of the Americas
New York, New York 10036
(212) 556-2100
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Shares Amount To Be Aggregate Price Aggregate Amount Of
To Be Registered Registered Per Share (1) Offering Price (1) Registration Fee
--------------------------------------- ---------------- --------------------- ---------------------- --------------------
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Common Stock, $.0001 par value 2,142,000 $9.70 (1) $20,777,400 $1,680.90
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Common Stock, $.0001 par value 1,608,000 $6.795(2) $10,926,360 $ 883.95
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(1) The offering price information is calculated with reference to the weighted
average exercise price per share of outstanding options and stock grants,
pursuant to Rule 457(h) of the Securities Act of 1933, as amended, solely
for the purpose of calculating the registration fee.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended, on the
basis of the average of the bid and asked price of the Common Stock on the
Nasdaq National Market on July 21, 2003.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees of MIM Corporation ("MIM" or the "Registrant") as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with the Note to Part I of Form S-8, such
documents will not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 of the Securities Act. These
documents and the documents incorporated by reference pursuant to Item 3 of Part
II of this Registration Statement, taken together, constitute the prospectus as
required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been previously filed by MIM with the
Commission and are incorporated by reference into this Registration Statement as
of their respective dates:
(a) Annual Report on Form 10-K for the fiscal year ended December
31, 2002;
(b) Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2003, as amended by Form 10-Q/A filed May 20, 2003 and Form 10-Q/A
filed May 21, 2003;
(c) Current Report on Form 8-K filed May 6, 2003; and
(d) The description of MIM's Common Stock contained in its
Registration Statement on Form 8-A/A dated May 20, 1999, including any amendment
or report filed for the purpose of updating such description.
In addition, all documents filed by MIM pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered hereunder have been sold or deregistering
all securities then remaining unsold, shall be deemed to be incorporated herein
by reference into this Registration Statement and shall be deemed to be a part
hereof from the date of filing of such documents.
Any statement contained in any document incorporated or deemed to be
incorporated by reference into this Registration Statement shall be deemed to be
modified or superseded for purposes thereof to the extent that a statement
contained therein or in any other subsequently filed document that is also
incorporated or deemed to be incorporated therein by reference modifies or
supersedes such statement. Any such statement so modified or superseded shall be
deemed to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Barry Posner, MIM's General Counsel, will issue an opinion as to the
validity of the Common Stock being offered hereunder. As of the date hereof, Mr.
Posner owns an aggregate of 63,600 shares of Common Stock and options to
purchase 165,666 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL")
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding whether civil, criminal or investigative (other than an
action by or in the right of the corporation) by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
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serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any such person serving in
any such capacity who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor, against expenses (including
attorneys' fees) actually and reasonably incurred in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or such other court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnify for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation, in its
certificate of incorporation, to limit or eliminate, subject to some statutory
limitations, the liability of directors to the corporation or its stockholders
for monetary damages for breaches of fiduciary duty, except for liability (a)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174 of
the DGCL (relating to unlawful payment of dividends and unlawful stock purchase
and redemption), or (d) for any transaction from which the director derived an
improper personal benefit. MIM's Amended and Restated Certificate of
Incorporation provides that MIM's directors shall not be liable to the company
or its stockholders for breach of fiduciary duty as a director, except for
liability arising out of clauses (a) through (d) in the preceding paragraph. The
Amended and Restated Certificate of Incorporation and MIM's Amended and Restated
By-Laws further provide that MIM shall indemnify its directors and officers to
the fullest extent permitted by the DGCL. In addition, MIM maintains director
and officer liability insurance policies.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference
into this Registration Statement pursuant to Item 601 of Regulation S-K:
EXHIBIT NO. DESCRIPTION
4.1 -- Amended and Restated Certificate of Incorporation of MIM Corporation (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on Form S-1, File No.
333-05327).
4.2 -- Certificate of Designations of Series A Junior Participating Preferred Stock
(incorporated by reference to Exhibit 4.2 to the Registrant's Current Report on Form 8-K
filed December 4, 1998).
4.3 -- Amended and Restated By-Laws of MIM Corporation (incorporated by reference to Exhibit 3.2
to the Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2003).
4.4 -- Amended and Restated Rights Agreement, dated as of December 3, 2003, between MIM Corporation and
American Stock Transfer and Trust Company (incorporated by reference to Exhibit 4.1 to
Post-Effective Amendment No. 3 to the Company's Form 8-A/A dated May 20, 1999).
4.5 -- MIM Corporation 2001 Incentive Stock Plan, as amended and restated.
5.1 -- Opinion of Barry A. Posner.
23.1 -- Consent of Barry A. Posner (included as part of opinion
filed as Exhibit 5.1 hereto).
23.2 -- Consent of Ernst & Young LLP.
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ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Elmsford, State of New York, on this 22nd day of
July, 2003.
MIM CORPORATION
By: /s/ James S. Lusk
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James S. Lusk
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James S. Lusk and Barry A. Posner,
and each of them acting individually, as his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing required or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each of said attorneys-in-fact and agents, or
any of them, or their or his substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 22nd day of July, 2003.
SIGNATURE TITLE
/s/ Richard H. Friedman Chairman of the Board and
---------------------------------- Chief Executive Officer (Principal
Richard H. Friedman Executive Officer)
(Principal Financial Officer and
/s/ James S. Lusk Principal Accounting Officer)
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James S. Lusk
/s/ Richard A. Cirillo Director
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Richard A. Cirillo
/s/ Charlotte W. Collins Director
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Charlotte W. Collins
/s/ Louis T. DiFazio, PhD Director
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Louis T. DiFazio, PhD
/s/ Harold J. Ford, Sr. Director
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Harold J. Ford, Sr.
/s/ Michael Kooper Director
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Michael Kooper
/s/ Louis A. Luzzi, PhD Director
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Louis A. Luzzi, PhD
/s/ Jack L. Salzman Director
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Jack L. Salzman
/s/ Ronald Shelp Director
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Ronald Shelp
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