Registration No. 333-33905
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Post-Effective Amendment No. 1 to
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
MIM Corporation
(Exact name of registrant as specified in its charter)
Delaware 05-0489664
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation)
100 Clearbrook Road, Elmsford, New York 10523
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK INCENTIVE PLAN
1996 NON-EMPLOYEE DIRECTORS STOCK INCENTIVE PLAN
(Full Title of the Plan)
Barry A. Posner, Vice President and General Counsel
MIM Corporation, 100 Clearbrook Road, Elmsford, New York 10523
(914) 460-1600
(Name, address and telephone number, including area code, of agent for service)
Approximate date of commencement of the proposed sale to the public:
From time to time after the Registration Statement becomes effective.
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Copies to:
Charles J. Downey III, Esq.
Finn Dixon & Herling LLP
One Landmark Square
Stamford, Connecticut 06901
(203) 325-5000
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EXPLANATORY NOTE
MIM Corporation, a Delaware corporation (the "Company"), adopted the MIM
Corporation 1996 Stock Incentive Plan (the "Employee Plan") and the MIM
Corporation 1996 Non-Employee Directors Stock Incentive Plan (the "Directors
Plan") (collectively, the "Plans") in May, 1996. The shares of the common stock,
$0.0001 par value per share, of the Company (the "Common Stock"), reserved for
issuance upon the exercise of options awarded pursuant to the Plans were
registered under the Securities Act of 1933, as amended (the "Act"), under a
Registration Statement on Form S-8 (Reg. No. 333-33905) filed and effective on
August 20, 1997 (the "Registration Statement").
Also, the Registration Statement and the reoffer prospectus included
therein were intended to register for reoffer and/or resale shares of Common
Stock that would be acquired under the Plans by persons who may be considered
affiliates of the Company as defined under Rule 405 of the Act.
Effective December 1, 1998, the Company amended and restated the Employee
Plan (as so amended and restated, the "Amended and Restated Employee Plan") in
order to add restricted stock as securities subject to grant by the Company to
employees under the Amended and Restated Employee Plan, to make available under
the Amended and Restated Employee Plan an additional 825,450 shares of Common
Stock and to make certain other technical changes to the Employee Plan.
Effective March 1, 1999, the Company amended and restated the Directors Plan (as
so amended and restated, the "Amended and Restated Directors Plan") to make
available under the Directors Plan an additional 200,000 shares of Common Stock.
The addition of shares of Common Stock under each of the Plans is subject to
stockholder approval at the Company's 1999 Annual Meeting of Stockholders.
On the date hereof, the Company has filed another Registration Statement on
Form S-8 (the "New Registration Statement") to register the Common Stock
reserved for issuance upon the exercise of options and the grant of restricted
stock which may be awarded pursuant to the Amended and Restated Employee Plan,
as well as the Common Stock reserved for issuance upon the exercise of options
under the Amended and Restated Directors Plan. In addition, the New Registration
Statement is intended to register for reoffer and/or resale the shares of Common
Stock that may be acquired under the Plans by persons who may be considered
affiliates of the Company as defined under Rule 405 of the Act.
From the date hereof, all securities previously registered under this
Registration Statement shall be deemed deregistered under this Registration
Statement and instead registered under the New Registration Statement. The
registration fee paid by the Company in connection with the initial Registration
Statement has been carried forward to the New Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed pursuant to Section
12(g) of the Exchange Act on July 30, 1996, as amended by Post-Effective
Amendment No. 1 on Form 8-A/A filed on August 1, 1996, and declared
effective on August 14, 1996 as well as the description of the Company's
Series A Junior Participating Preferred Stock Purchase Rights contained in
the Company's Registration Statement on Form 8-A filed on December 4, 1998,
as amended by Post-Effective Amendment No. 1 on Form 8-A/A filed on
December 14, 1998, as amended by Post-Effective Amendment No. 2 on Form
8-A/A filed on May 20, 1999.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such reports or documents. Statements made herein as to the contents
of any contract, agreement or other document are not necessarily complete. With
respect to each such contract, agreement or other document filed as an exhibit
to this Registration Statement, reference is made to the exhibit for a more
complete description of the matter involved, and each such statement shall be
deemed qualified in its entirety by such reference.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") limits the liability of the Company's directors
to the Company or its stockholders to the fullest extent permitted by the
Delaware General Corporation Law (the "DGCL"). Specifically, no director of the
Company will be personally liable for monetary damages for a breach of such
director's fiduciary duty as a director of the Company except for liability (a)
for any breach of the director's duty of loyalty to the Company or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) for unlawful payment
of dividends or unlawful stock repurchases or redemptions as provided in Section
174 of the DGCL or (d) for any transaction from which such director derived an
improper personal benefit. In addition, the Company's Amended and Restated
By-Laws (the "By-Laws") require the Company to indemnify any current or former
director or officer to the fullest extent permitted by the DGCL. The Company
also maintains insurance for the benefit of its directors and officers and the
directors and officers of its subsidiaries insuring such persons against certain
civil liabilities, including liabilities under the securities laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
None.
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) (i) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933
(the "Securities Act");
(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. The foregoing notwithstanding, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may
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<PAGE>
be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective 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.
(2) That, for the purposes of determining any liability under the
Securities Act, 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the DGCL, the Certificate of Incorporation, the By-Laws
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 Securities 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 of whether
such indemnification by it is against public policy as expressed in the
Securities 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 Post-Effective
Amendment No. 1 to Registration Statement on Form S-8 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the Village of Elmsford, State
of New York, on this 27th day of May, 1999.
MIM Corporation
By: /s/ Barry A. Posner
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Barry A. Posner
Vice President and General Counsel
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity(ies) Date
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<S> <C> <C>
/s/ Richard H. Friedman Principal Executive Officer/Director May 26, 1999
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Richard H. Friedman
/s/ Scott R. Yablon Director May 26, 1999
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Scott R. Yablon
/s/ Edward J. Sitar Principal Financial and Accounting May 26, 1999
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Edward J. Sitar
/s/ Louis DiFazio Director May 26, 1999
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Louis DiFazio, Ph.D.
/s/ Richard A. Cirillo Director May 26, 1999
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Richard A. Cirillo
/s/ Louis A. Luzzi Director May 26, 1999
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Louis A. Luzzi, Ph.D.
/s/ Michael Kooper Director May 26, 1999
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Michael Kooper
</TABLE>
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