As filed with the Securities and Exchange Commission on August 24, 2001
Registration No. 333-64972
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
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 of (I.R.S. Employer
incorporation or organization) Identification No.)
MIM Corporation
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)
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
1185 Avenue of the Americas
New York, New York 10036
(212) 556-2100
--------------------------
Approximate date of commencement of proposed sale to public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
================================================================================
Subject to Completion, Dated August 24, 2001
PROSPECTUS
MIM CORPORATION
---------------------------
1,457,947 Shares of Common Stock
(par value $.0001 per Share)
---------------------------
This prospectus relates to the offering from time to time of up to
1,457,947 shares of common stock of MIM Corporation by Livingston Group LLC.
The common stock is listed on the Nasdaq National Market under the
symbol "MIMS." On August 23, 2001, the last sale price of our common stock as
reported on the Nasdaq National Market was $9.52 per share.
Investing in the common stock involves certain risks. See "Risk
Factors" beginning on page 3 for a discussion of these risks.
The information in this prospectus is not complete and may be
changed. The selling stockholder may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
---------------------------
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or passed
upon the accuracy or adequacy of this prospectus. Any representation to the
contrary is a criminal offense.
---------------------------
The date of this prospectus is , 2001.
TABLE OF CONTENTS
MIM Corporation..............................................................1
Risk Factors.................................................................1
Special Note Regarding Forward-Looking Statements............................7
Use of Proceeds..............................................................7
Selling Stockholder..........................................................8
Plan of Distribution.........................................................8
Validity of Common Stock....................................................10
Experts ....................................................................10
About this Prospectus.......................................................10
Where You Can Find More Information.........................................11
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MIM CORPORATION
We provide integrated pharmacy benefit management services, which we
refer to as PBM services, to our client groups, including managed care
organizations, insurance carriers, unions, government agencies, employers, third
party administrators and other funded plan sponsors. We perform these PBM
services using clinically sound guidelines to ensure cost control and quality
care for our clients. Our comprehensive PBM services include the delivery of
pharmaceutical products through our network of retail pharmacies or our
distribution facilities, pharmacy claims processing, benefit design
consultation, drug utilization review, formulary management, drug data analysis
and rebate administration. We also offer our PBM clients the opportunity to
utilize additional innovative PBM services, including our Bioscrip disease
management services and our online pharmacy. Under our Bioscrip programs, we
provide for the cost effective delivery of expensive specialty medications,
including infusion and injectable pharmaceuticals, to patients who are afflicted
with life threatening diseases and genetic impairments. Our online pharmacy,
www.MIMRx.com, develops private label websites for clients to allow their
members to order prescriptions and access innovative and customized health
information services and products on the Internet.
We are incorporated under the laws of the State of Delaware. Our
principal executive offices are located at 100 Clearbrook Road, Elmsford, New
York 10523, and our telephone number is (914) 460-1600.
RISK FACTORS
You should carefully consider the following factors and other
information included or incorporated by reference in this prospectus before
deciding to invest in shares of common stock.
Some of our competitors may distribute pharmaceuticals on a more
cost-effective basis and take away some of our market share. We face substantial
competition within the traditional PBM industry, the mail order pharmacy
business and the specialty pharmaceutical product area. The PBM industry
includes a number of large, well-capitalized companies with nationwide
operations, such as AdvancePCS, Express Scripts, Caremark Rx, Merck-Medco,
WellPoint Pharmacy Management and MedImpact Healthcare Systems and many smaller
organizations typically operating on a local or regional basis. Some of our
competitors have affiliations with brand name drug manufacturers or retail
pharmacy chains and may be better positioned with respect to the cost effective
distribution of pharmaceuticals. Our predecessor began PBM operations in 1993,
whereas some of our primary competitors have been in the PBM industry for much
longer and have a relatively larger portion of the market share. If we are
unable to grow or, at a minimum retain, our relatively small market share, our
ability to cross sell our specialty pharmacy services to our PBM clients could
be limited.
We also compete with several national and regional companies that
have substantial financial resources and primarily provide specialty
pharmaceutical services to the chronically ill and genetically impaired, such as
Accredo Health, Chronimed, Gentiva Health and Priority Healthcare. We began to
offer specialty pharmaceutical programs in August 2000 with our acquisition of
American Disease Management Associates, LLC. Although we have experienced
substantial growth in the specialty pharmaceutical service area of our business,
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most of our competitors have been in the business of delivering specialty
pharmaceutical services considerably longer than we have and have secured
long-term supply or distribution arrangements for prescription pharmaceuticals
necessary to treat certain chronic disease states on price terms substantially
more favorable than the terms currently available to us. As a result of such
advantageous pricing, we may be unable to compete with these companies on
particular prescription products or in particular disease states.
Any change in our relationship with managed care organizations
providing health and prescription benefits under Tennessee's state health
program could reduce our profitability. Historically, a majority of our revenues
have been derived from providing PBM services in the state of Tennessee to
managed care organizations, or MCOs, participating in Tennessee's TennCare(R)
program. The TennCare(R) program operates under a demonstration waiver from the
United States Health Care Financing Agency, which is due to expire on December
31, 2001. We provide our ongoing service to those MCOs under this demonstration
waiver program. If the waiver is not renewed, or we are not chosen to continue
to provide pharmacy benefits to enrollees of a successor program, then the
failure to provide such services would have a material adverse effect on our
financial position and results of operations.
Increases in the price of pharmaceuticals may reduce our revenues.
Under capitated arrangements, we are responsible for increases in prescription
costs, which adversely affects our gross profits. In such instances, we may be
required to increase capitated contract rates on new contracts and upon renewal
of existing capitated contracts. However, we may not be able to obtain these
rate increases because of market conditions at the time of such price increases.
If we lose relationships with one or more key pharmaceutical
manufacturers or if the payments we receive from pharmaceutical manufacturers
decline, our business, profitability and growth prospects could suffer. We have
contractual relationships with numerous pharmaceutical manufacturers that pay us
rebate payments based on use of selected drugs by health plan members, as well
as fees for other programs and services. We believe our business, profitability
and growth prospects could suffer if:
o we lose relationships with one or more key pharmaceutical
manufacturers;
o rebates decline due to our failure to meet market share or other
thresholds;
o legal restrictions are imposed on the ability of pharmaceutical
manufacturers to offer formulary rebates or purchase our programs or
services; or
o pharmaceutical manufacturers choose not to offer formulary rebates or
purchase our programs or services.
If we lose pharmacy network affiliations, our business,
profitability and growth prospects could suffer. Our contracts with retail
pharmacies, which are non-exclusive, are generally terminable by either party on
short notice. If one or more of the top pharmacy chains elects to terminate its
relationship with us or if we are only able to continue our relationship on
terms less favorable to us, our members' access to retail pharmacies and our
business could suffer. In addition, some large retail pharmacy chains either own
or have strategic alliances with PBMs or could attempt to acquire or enter into
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these kinds of relationships with PBMs in the future. Ownership of, or alliances
with, PBMs by retail pharmacy chains could reduce the number of retail pharmacy
chains available to our members and cause our members to migrate to PBMs with
greater access to retail pharmacy chains.
We are subject to heightened federal regulatory scrutiny, which
could result in sanctions or penalties. As a participant in the healthcare
industry, our operations and relationships are subject to extensive federal and
state laws and regulations and enforcement by federal and state governmental
agencies. There are significant uncertainties regarding the application of many
of these legal requirements to our business, and we cannot provide any assurance
that a regulatory agency charged with enforcement of any of these laws or
regulations will not interpret them differently or, if there is an enforcement
action brought against us, that our interpretation would prevail. In addition,
there are numerous proposed health care laws and regulations at the federal and
state levels, many of which could materially affect our ability to conduct our
business or adversely affect our results of operations. We are unable to predict
what additional federal or state legislation or regulatory initiatives may be
enacted in the future relating to our business or the health care industry in
general, or what effect any such legislation or regulations might have on us.
In the second quarter of 2000, we entered into a global settlement
agreement with the Office of Inspector General or OIG, within the U.S.
Department of Health and Human Services or HHS and the State of Tennessee
relating to certain civil and criminal charges against former officers of our
predecessor. We did not admit any wrongdoing in the global settlement agreement
but agreed to enter into a corporate integrity agreement in order to ensure our
ongoing compliance with the requirements of Medicare, Medicaid and all other
Federal health care programs. Under the terms of this agreement, we are required
to, among other things, implement a corporate compliance program, conduct
ongoing educational programs to inform employees regarding compliance with
relevant laws and regulations and institute a formal reporting procedure to
disclose possible violations to the OIG. In addition to these requirements, we
must submit annual reports with respect to the status of our compliance
activities. Although compliance with the corporate integrity agreement is
designed to reduce the risk of violations of laws and regulations relevant to
our business, we are required to report any such potential violations to the OIG
and the U.S. Department of Justice. Any actual violations could result in
sanctions or penalties, including exclusion from participation in the Medicare
or Medicaid programs.
Subject to certain statutory and regulatory exceptions (including
exceptions relating to certain managed care, discount, group purchasing and
personal services arrangements), Federal law prohibits the payment or receipt of
remuneration to induce, arrange for or recommend the purchase of health care
items or services paid for in whole or in part by Medicare or state health care
programs (including Medicaid programs or Medicaid waiver programs, such as
TennCare(R)). Certain state laws may extend the prohibition to items or services
that are paid for by private insurance and self-pay patients. Our arrangements
with RxCare of Tennessee, Inc., a pharmacy services administrative organization
owned by the Tennessee Pharmacists Association, and other pharmacy network
administrators, drug manufacturers, marketing agents, brokers, health plan
sponsors, pharmacies and others parties routinely involve payments to or from
persons who provide or purchase, or recommend or arrange for the purchase of,
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items or services paid in part by the TennCare(R) program or by other programs
covered by such laws. We carefully consider the importance of such
"anti-kickback" laws when structuring our operations, and believe that we are in
compliance with such laws. Violation of the Federal anti-kickback statute could
subject us to criminal and/or civil penalties, including exclusion from Medicare
and Medicaid (including TennCare(R)) programs or state-funded programs in the
case of state enforcement.
The federal anti-kickback law has been interpreted broadly by
courts, the OIG and administrative bodies. Because of the federal statutes,
broad scope, federal regulations establish certain safe harbors from liability.
Safe harbors exist for certain properly reported discounts received from
vendors, certain investment interest, and certain properly disclosed payments
made by vendors to group purchasing organizations, as well as for other
transactions or relationships. In late 1999, HHS adopted final rules revising
the discount safe harbor to protect certain rebates. Because this revision is
fairly recent, the guidance on how the safe harbor revision will be interpreted
is not fully developed. Nonetheless, a practice that does not fall within a safe
harbor is not necessarily unlawful, but may be subject to scrutiny and
challenge. In the absence of an applicable exception or safe harbor, a violation
of the statute may occur even if only one purpose of a payment arrangement is to
induce patient referrals or purchases. Among the practices that have been
identified by the OIG as potentially improper under the statute are certain
"product conversion programs" in which benefits are given by drug manufacturers
to pharmacists or physicians for changing a prescription (or recommending or
requesting such a change) from one drug to another. Anti-kickback laws have been
cited as a partial basis, along with state consumer protection laws, for
investigations and multi-state settlements relating to financial incentives
provided by drug manufacturers to retail pharmacies in connection with such
programs.
Certain governmental entities have commenced investigations of PBM
companies and other companies having dealings with the PBM industry and have
identified issues concerning selection of drug formularies, therapeutic
substitution programs and discounts or rebates from prescription drug
manufacturers. Additionally, at least one state has filed a lawsuit concerning
similar issues against a health plan. To date, we have not been the subject of
any such investigation or suit and have not received subpoenas or been requested
to produce documents for any such investigation or suit. However, we may, in the
future, receive subpoenas or be requested to produce documents in pending
investigations or litigations in the future.
Pending and future litigation could materially affect our
relationships with pharmaceutical manufacturers or subject us to significant
monetary damages. Since 1993, retail pharmacies have filed over 100 separate
lawsuits against pharmaceutical manufacturers, wholesalers and certain PBMs,
challenging brand name drug pricing practices under various state and federal
antitrust laws. The plaintiffs alleged, among other things, that the
manufacturers had offered, and certain PBMs had knowingly accepted, discounts
and rebates on purchases of brand name prescription drugs that in violation of
federal laws that generally prohibit the granting of discounts, rebates,
allowances or advertising service charges to certain purchasers in order to
destroy competition or eliminate a competitor. Some manufacturers settled
certain of these actions, including a case brought on behalf of a nationwide
class of retail pharmacies. The class action settlements generally provided for
commitments by the manufacturers in their discounting practices to retail
pharmacies. The defendants who did not settle won the class action on a directed
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verdict. With respect to the cases filed by plaintiffs who opted out of the
class action, some drug manufacturers have settled certain of these actions, but
such settlements are not part of the public record. Some of these cases are
still pending.
Although we are not currently a party to any of these proceedings,
we may, in the future, be made a party to similar lawsuits. An adverse decision
in any such lawsuit could result in a substantial monetary judgment being
rendered against us, which would have a material adverse effect on our business
and could lead to a decrease in our stock price.
Existing patient privacy laws could subject us to monetary fines and
criminal sanctions. In December 2000, HHS issued final regulations regarding the
privacy of individually-identifiable health information pursuant to the Health
Insurance Portability and Accountability Act of 1996, or HIPAA. This final rule
on privacy applies to a health care patient's medical information that could be
used to identify the individual identity of the patient. We refer to this
information as protected health information. The final rule mandates the
protection of protected health information in any format, including both
electronic and paper records and imposes extensive requirements on the way in
which health care providers such as us, health plan sponsors and their business
associates use and disclose protected health information. The final rule gives
patients significant rights to understand and control how their protected health
information is used and disclosed. Organizations subject to the rule will have
until April 14, 2003 comply with its provisions and implement appropriate
policies and procedures to safeguard protected health information. HIPAA will
likely increase our burden and costs of regulatory compliance with respect to
our health improvement programs and other information-based products, alter our
reporting to certain health plan sponsors and may reduce the amount of
information we may use if patients do not consent to such use. Sanctions for
failing to comply with standards issued pursuant to HIPAA include possible jail
time, criminal penalties of up to $250,000 and civil fines of up to $25,000. In
addition, HHS has proposed, but not yet finalized, regulations pursuant to HIPAA
that govern the security of individually-identifiable health information.
We have anti-takeover provisions that could delay or prevent a
change in control, even if it would benefit stockholders. We have adopted
anti-takeover provisions that could delay or prevent a third party from gaining
control of us in a transaction that our board of directors has not negotiated
and approved, even if such change in control would be beneficial to our
stockholders. These anti-takeover provisions could depress the market price of
our common stock. These anti-takeover provisions include:
o change in control provisions in employment agreements with various
executive officers;
o restrictions on who may call a special meeting of stockholders; and
o a stockholders' rights plan.
The trading price of our common stock is volatile. The trading price
of our common stock could be subject to wide fluctuations in response to
quarter-to-quarter variations in our operating results, government regulatory
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action, general conditions in the pharmaceutical industry, increased price
competition, changes in earnings estimates by analysts or other events or
factors, many of which are beyond our control. In addition, the stock market has
experienced extreme price and volume fluctuations.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus may include or incorporate by reference
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, including statements regarding our expectations, hopes, beliefs,
intentions or strategies regarding the future. These statements may be included
in the information incorporated by reference above under "Where You Can Find
More Information." Forward looking statements may include statements relating
to:
o our business development activities;
o sales and marketing efforts;
o the status of material contractual arrangements including the
negotiation or re-negotiation of such arrangements;
o future capital expenditures;
o the effects of regulation and competition on our business and future
operating performance;
o the results, benefits and risks associated with integration of
acquired companies; and
o the likely outcome and the effect of legal proceedings on our business
and operations and/or the resolution or settlement thereof.
Investors are cautioned that any such forward looking statements are
not guarantees of future performance and involve risks and uncertainties, and
that actual results may differ materially from those possible results discussed
in the forward looking statements as a result of various factors. These factors
include, among other things, risks associated with risk-based or "capitated"
contracts, increased government regulation related to the health care and health
insurance industries in general and more specifically, pharmacy benefit
management organizations, the existence of complex laws and regulations relating
to our business, increased competition from our competitors, including
competitors with greater financial, technical, marketing and other resources.
Consequently, you should regard forward-looking statements only as
our current plans, estimates and beliefs. We do not promise to notify you if we
learn that our assumptions or projections are wrong for any reason. Before you
decide to invest in shares of common stock you should be aware that the factors
we discuss in the "Risk Factors" section in this prospectus could cause our
actual results to differ from what we have stated in any forward-looking
statements.
USE OF PROCEEDS
The selling stockholder will receive all net proceeds from the sale
of the common stock. We will not receive any of the proceeds from the sale of
the shares of common stock offered by the selling stockholder under this
prospectus.
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SELLING STOCKHOLDER
The following table sets forth, as of August 23, 2001, the identity
of the selling stockholder, the number of shares of common stock owned by the
selling stockholder prior to this offering and the number of shares of common
stock offered by the selling stockholder under this prospectus.
Because the selling stockholder may sell all, some or none of the
common stock offered under this prospectus, no estimate can be given as to the
amount of common stock that will be held by the selling stockholder upon
termination of the offering. See "Plan of Distribution."
Number of Shares
Beneficially Owned Maximum Number of
Name of Selling Stockholder Prior to the Offering Shares Being Offered
- ------------------------------- ---------------------- ---------------------
Livingston Group LLC*........... 1,457,947 1,457,947
- -------------
* A Schedule 13D filed on June 8, 2001 discloses that John Chay has sole
voting and dispositive power over these shares. Three of our employees are
members of Livingston Group LLC.
In connection with our acquisition of all of the interests of
American Disease Management Associates, LLC ("ADIMA"), the selling members of
ADIMA formed Livingston Group LLC as a holding company to hold those shares of
MIM issued as part of the consideration for the purchase of ADIMA. At the time
of the acquisition, we entered into a registration rights agreement with
Livingston Group LLC which is incorporated by reference as an exhibit to the
registration statement, of which this prospectus forms a part.
PLAN OF DISTRIBUTION
This prospectus relates to the offer and sale by the selling
stockholder of up to 1,457,947 shares of common stock, par value $.0001 per
share.
The shares covered by this prospectus may be offered and sold from
time to time by the selling stockholder. The selling stockholder will act
independently of us in making decisions with respect to the timing, manner and
size of each sale. The selling stockholder may sell the shares being offered
hereby on the Nasdaq Stock Market, or otherwise, at prices and under terms then
prevailing, at prices related to the then current market price, or at negotiated
prices. Registration of the shares does not necessarily mean that any of the
shares will be offered by the selling stockholder.
The selling stockholder has advised us that it is not a party to any
agreement or other understanding to distribute the securities, directly or
indirectly.
Shares may be sold at any time and from time to time, when and if so
determined by the selling stockholder, by one or more of the following means of
distribution:
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o block trades in which the broker-dealer so engaged will attempt to
sell such shares as agent, but may position and resell a portion of
the block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
o over-the-counter distributions in accordance with the rules of the
NASD;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
o privately negotiated transactions.
We will not receive any of the proceeds from the sale of shares by
the selling stockholder. We will bear all expenses in connection with the
registration of the common stock except that the selling stockholder will pay
all underwriting commissions and similar selling expenses, brokerage fees and
transfer taxes as well as fees of its counsel.
In connection with any distributions of the shares, the selling
stockholder may enter into hedging transactions with broker-dealers or other
financial institutions who may engage in short sales of our common stock in the
course of hedging the positions they assume with the selling stockholder. The
selling stockholder also may (i) sell the common stock short and redeliver the
shares to close out such short positions; (ii) enter into option or other
transactions with broker-dealers or other financial institutions which require
the delivery thereto of the shares offered hereby, which shares such
broker-dealer or other financial institutions may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction); or (iii)
pledge such shares to a broker-dealer or other financial institution, and, upon
a default, such broker-dealer or other financial institution, may effect sales
of such pledged shares pursuant to this prospectus (as supplemented or amended
to reflect such transaction). In addition, any such shares that qualify for sale
pursuant to Rule 144 under the Securities Act may be sold under that Rule rather
than pursuant to this prospectus.
In effecting sales, brokers, dealers or agents engaged by the
selling stockholder may arrange for other brokers or dealers to participate.
Brokers, dealers or agents may receive commissions, discounts or concessions
from the selling stockholder in amounts to be negotiated prior to the sale. Such
brokers or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales, and any such commissions,
discounts or concessions may be deemed to be underwriting discounts or
commissions under the Securities Act.
In order to comply with the securities laws of certain states, the
shares must be sold in such states only through registered or licensed brokers
or dealers. In addition, in certain states shares may not be sold unless they
have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirements is available and
has been complied with.
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The rules and regulations in Regulation M under the Exchange Act
provide that during the period that any person is engaged in the distribution
(as defined therein) of common stock, such person generally may not purchase
shares of our common stock. The selling stockholder may be subject to such
regulation which may limit the timing of its purchases and sales of shares of
the common stock.
At the time a particular offer of shares is made, if required, a
prospectus supplement will be distributed that will set forth the number of
shares being offered and the terms of the offering, including the name of any
underwriter, dealer or agent, the purchase price paid by any underwriter, any
discount, commission and other item constituting compensation, any discount,
commission or concession allowed or reallowed or paid to any dealer, and the
proposed selling price to the public.
We have agreed to indemnify the selling stockholder, and any person
controlling it, against certain liabilities, including liabilities under the
Securities Act. The selling stockholder has agreed to indemnify us and certain
related persons against certain liabilities, including liabilities under the
Securities Act.
We have agreed with the selling stockholder to keep the registration
statement, of which this prospectus constitutes a part, effective until the
earlier of the sale of all the shares or 90 days following the effective date of
the registration statement.
Agents, underwriters or dealers may engage in transactions with or
perform services for us in the ordinary course of business.
VALIDITY OF COMMON STOCK
The validity of the common stock offered hereby will be passed upon
for us by Barry A. Posner, General Counsel of the Company.
EXPERTS
The consolidated financial statements included in the Annual Report
on Form 10-K for the year ended December 31, 2000 and the historical financial
statements of American Disease Management Associates, LLC, as of December 31,
1999 and 1998 and for the three years in the period ended December 31, 1999,
both incorporated by reference in this prospectus, have been audited by Arthur
Andersen LLP, independent certified public accountants, as indicated in their
reports with respect thereto and are included in this document in reliance upon
the authority of said firm as experts in accounting and auditing.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission using a "shelf" registration
process. Under this shelf process, one of our stockholders, which we refer to as
the selling stockholder, may sell up to an aggregate of 1,457,947 shares of
common stock in one or more offerings. You should read this prospectus and any
applicable prospectus supplement provided to you together with the additional
information described under the heading "Where You Can Find More Information."
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The registration statement that contains this prospectus (including
the exhibits to the registration statement) contains additional information
about our company and the securities offered under this prospectus. That
registration statement can be read at the SEC web site or at the SEC offices
mentioned under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549. You can also obtain copies of the
documents at prescribed rates by writing to the Public Reference Section of the
SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. Our SEC filings are also available at the office of the Nasdaq
National Market, Inc. at 1735 K Street, N.W., Washington, D.C. 20006-1506.
The SEC allows us to incorporate by reference into this prospectus
the information that we file with the SEC, which means that we disclose
important information to you by referring to these documents and the information
contained therein. The information incorporated by reference is an important
part of this prospectus and the accompanying prospectus supplement. In addition,
any information that we file with the SEC subsequent to the date of this
prospectus will automatically update this prospectus. We incorporate by
reference the documents listed below and any filings that we make with the SEC
under sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
after the initial filing of the registration statement that contains this
prospectus and prior to the time that the selling stockholder sells all of the
common stock offered by this prospectus:
o Annual Report on Form 10-K for fiscal year ended December 31, 2000.
o Quarterly Report on Form 10-Q for the period ended June 30, 2001.
o Quarterly Report on Form 10-Q for the period ended March 31, 2001.
o Current Report on Form 8-K/A filed on October 18, 2000.
o The description of the common stock included in our Registration
Statement on Form 8-A/A dated May 20, 1999.
You may request a copy of these filings (other than an exhibit to a
filing unless that exhibit is specifically incorporated by reference into that
filing) at no cost, by writing to or telephoning us at the following address:
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MIM Corporation
100 Clearbrook Road
Elmsford, New York 10523
(914) 460-1600
Attn: General Counsel
You should only rely on the information incorporated by reference or
set forth in this prospectus or any applicable prospectus supplement. We have
not authorized anyone else to provide you with different information. The
selling stockholder is only offering these securities in states where the offer
is permitted. You should not assume that the information in this prospectus or
the applicable prospectus supplement is accurate as of any date other than the
dates on the front of such documents.
================================================================================
1,457,947 Shares
MIM CORPORATION
Common Stock
--------------------------
PROSPECTUS
--------------------------
, 2001
================================================================================
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution
SEC registration fee........................................ $ 4,121
Legal fees and expenses..................................... $20,000
Accounting fees and expenses................................ $20,000
Printing expenses........................................... $ 5,000
Miscellaneous............................................... $ 879
-------
Total............................................. $50,000
=======
Item 15. 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
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 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 Certificate of
Incorporation and MIM's 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 16. Exhibits
3.1 -- Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to
the Registrant's Registration Statement on Form S-1, File No. 333-05327).
3.2 -- Amended and Restated By-Laws of the Registrant (incorporated by reference to Exhibit 3(ii) to the Company's
Quarterly Report on Form 10-Q for the period ended March 31, 1998).
4.1 -- Amended and Restated Rights Agreement dated as of May 20, 1999, between the Registrant and American Stock Transfer
and Trust Company (incorporated by reference to Exhibit 4.1 to Post-Effective Amendment No. 2 to the Registrant's
Form 8-A/A dated May 20, 1999).
4.2 -- Purchase Agreement among American Disease Management Associates, L.L.C., its Members and Certain Related Partners,
MIM Health Plans, Inc. and the Registrant, dated as of August 3, 2000 (incorporated by reference to Exhibit 2.1 to
the Registrant's Current Report on Form 8-K filed August 10, 2000).
4.3 -- Registration Rights Agreement between the Registrant and Livingston Group LLC dated as of August 3, 2000
(incorporated by reference to Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed August 10, 2000).
*5.1 -- Opinion of Barry A. Posner.
*23.1 -- Consent of Barry A. Posner (included as part of opinion
filed as Exhibit 5.1).
**23.2 -- Consent of Arthur Andersen LLP.
--------
* Previously filed.
** Filed herewith.
Item 17. Undertakings
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. Notwithstanding the foregoing, any
increase or decrease in the 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 end 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
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(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)(l)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and 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.
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 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.
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 provisions described under Item 15
above, 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.
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-3 and has duly caused this Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Elmsford, State of New
York, on August 23, 2001.
MIM CORPORATION
By: /s/ Barry A. Posner
-------------------------------------
Barry A. Posner
Vice President, Secretary and
General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard H. Friedman and Barry A. Posner
and each of them acting individually, 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 full power and
authority to do and perform each and every act and thing requisite and 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, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities indicated on the 23rd day of August, 2001.
SIGNATURE TITLE
/s/ Richard H. Friedman Chairman of the Board, Chief
---------------------------------- Executive Officer and Director
Richard H. Friedman (Principal Executive Officer)
/s/ Donald A. Foscato (Principal Financial Officer
---------------------------------- and Principal Accounting Officer)
Donald A. Foscato
/s/ Richard A. Cirillo Director
----------------------------------
Richard A. Cirillo
/s/ Louis DiFazio Director
----------------------------------
Louis DiFazio
/s/ Harold Ford Director
----------------------------------
Harold Ford
/s/ Michael Kooper Director
----------------------------------
Michael Kooper
/s/ Louis A. Luzzi Director
----------------------------------
Louis A. Luzzi
/s/ Ronald K. Shelp Director
----------------------------------
Ronald K. Shelp
EXHIBIT INDEX
Exhibit Sequential
No. Description Of Exhibits Page No.
------------- ------------------------------------------------------------------------- --------
3.1 -- Amended and Restated Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on Form S-1, File
No. 333-05327).
3.2 -- Amended and Restated By-Laws of the Registrant (incorporated by reference to Exhibit
3(ii) to the Registrant's Quarterly Report on Form 10-Q for the period ended March 31,
1998).
4.1 -- Amended and Restated Rights Agreement dated as of May 20, 1999, between the Registrant
and American Stock Transfer and Trust Company (incorporated by reference to Exhibit 4.1
to Post-Effective Amendment No. 2 to the Registrant's Form 8-A/A dated May 20, 1999).
4.2 -- Purchase Agreement among American Disease Management Associates, L.L.C., its Members and
Certain Related Partners, MIM Health Plans, Inc. and the Registrant, dated as of August
3, 2000 (incorporated by reference to Exhibit 2.1 to the Registrant's Current Report on
Form 8-K filed August 10, 2000)
4.3 -- Registration Rights Agreement between the Registrant and Livingston Group LLC dated as
of August 3, 2000 (incorporated by reference to Exhibit 4.1 to the Registrant's Current
Report on Form 8-K filed August 10, 2000).
*5.1 -- Opinion of Barry A. Posner.
*23.1 -- Consent of Barry A. Posner (included as part of opinion filed as Exhibit 5.1).
**23.2 -- Consent of Arthur Andersen LLP.
--------
* Previously filed.
** Filed herewith.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-3 of our
report dated March 1, 2001, included in MIM Corporation's Annual Report on Form
10-K for the year ended December 31, 2000, and our report dated October 11,
2000, included in MIM Corporation's Form 8-K/A on the financial statements of
American Disease Management Associates, LLC as of December 31, 1999 and 1998 and
for the three years ended December 31, 1999 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
August 21, 2001
Roseland, New Jersey
