Registration No. 333-79397
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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
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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)
1998 PRESIDENT AND CHIEF OPERATING OFFICER EMPLOYMENT AGREEMENT
(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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EXPLANATORY NOTE
MIM Corporation, a Delaware corporation (the "Company"), entered into an
employment agreement on December 2, 1998 with Mr. Richard H. Friedman, the
Company's Chairman and Chief Executive Officer. Under his employment agreement,
the Company granted Mr. Friedman an option ("Options") to purchase 800,000
shares of common stock, $0.0001 par value per share, of the Company (the "Common
Stock"), and 300,000 shares of Common Stock subject to restrictions on transfer
and encumbrance through December 2, 2006 ("Restricted Shares"). The
effectiveness of the grant of the Options and the Restricted Shares to Mr.
Friedman was contingent upon and subject to stockholder approval prior to
December 31, 1999.
On April 17, 1998, the Company entered into an employment agreement with
Mr. Scott R. Yablon, the Company's President and Chief Operating Officer. Under
his employment agreement, the Company granted Mr. Yablon an option to purchase
1,000,000 shares of Common Stock.
The shares of Common Stock reserved for issuance upon the exercise of
options granted under the employment agreements and the Restricted Shares were
registered under the Securities Act of 1933, as amended (the "Act"), under a
Registration Statement on Form S-8 (Reg. No. 333-79397) filed and effective on
May 27, 1999 (the "Registration Statement"). In addition, in accordance with
General Instruction C.1(b) to Form S-8, 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 by Messrs. Friedman and
Yablon (persons who may be considered affiliates of the Company as defined under
Rule 405 of the Act) under their respective employment agreements.
The Company hereby deregisters from registration under the Act pursuant to
the Registration Statement the 1,100,000 shares of Common Stock with respect to
the grants of Options and Restricted Shares to Mr. Friedman, which grants were
revoked by mutual agreement to the parties. The Registration Statement remains
in effect with respect to the remaining 1,000,000 shares subject to Mr. Yablon's
options.
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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 Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999 and June 30, 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.
FItem 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
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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 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 19th day of October, 1999.
MIM Corporation
By: /s/ Barry A. Posner
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Barry A. Posner
Vice President and General Counsel
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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.
Signature Capacity(ies) Date
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/s/ Richard H. Friedman Principal Executive Officer/Director October 19, 1999
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Richard H. Friedman
/s/ Scott R. Yablon Director October 19, 1999
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Scott R. Yablon
/s/ Edward J. Sitar Principal Financial and Accounting Officer October 19, 1999
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Edward J. Sitar
/s/ Louis DiFazio Director October 19, 1999
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Louis DiFazio, Ph.D.
/s/ Richard A. Cirillo Director October 19, 1999
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Richard A. Cirillo
/s/ Louis A. Luzzi Director October 19, 1999
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Louis A. Luzzi, Ph.D.
/s/ Michael Kooper Director October 19, 1999
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Michael Kooper