AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 24, 2003
REGISTRATION NO. 333-_____
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
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 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)
---------------------------
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
---------------------------
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
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
- --------------------------------------- ---------------- --------------------- ---------------------- --------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.0001 par value 2,142,000 $9.70 (1) $20,777,400 $1,680.90
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.0001 par value 1,608,000 $6.795(2) $10,926,360 $ 883.95
====================================================================================================================================
- -----------------
(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.
- --------------------------------------------------------------------------------
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
1
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.
2
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.
3
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.
4
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
-----------------------
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)
- ----------------------------------
James S. Lusk
/s/ Richard A. Cirillo Director
- ----------------------------------
Richard A. Cirillo
/s/ Charlotte W. Collins Director
- ----------------------------------
Charlotte W. Collins
/s/ Louis T. DiFazio, PhD Director
- ----------------------------------
Louis T. DiFazio, PhD
/s/ Harold J. Ford, Sr. Director
- ----------------------------------
Harold J. Ford, Sr.
/s/ Michael Kooper Director
- ----------------------------------
Michael Kooper
/s/ Louis A. Luzzi, PhD Director
- ----------------------------------
Louis A. Luzzi, PhD
/s/ Jack L. Salzman Director
- ----------------------------------
Jack L. Salzman
/s/ Ronald Shelp Director
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Ronald Shelp
5
MIM CORPORATION
2001 INCENTIVE STOCK PLAN
AS AMENDED AND RESTATED
EFFECTIVE JUNE 5, 2003
TABLE OF CONTENTS
Page
ss.1. BACKGROUND AND PURPOSE1
ss.2. DEFINITIONS 1
2.1 Affiliate............................................1
2.2 Board................................................1
2.3 Change in Control....................................1
2.4 Code.................................................2
2.5 Committee............................................2
2.6 Ending Value.........................................2
2.7 Fair Market Value....................................2
2.8 ISO..................................................2
2.9 Key Employee.........................................2
2.10 1933 Act.............................................2
2.11 1934 Act.............................................2
2.12 MIM..................................................2
2.13 Non-ISO..............................................2
2.14 Option...............................................3
2.15 Option Certificate...................................3
2.16 Option Price.........................................3
2.17 Parent...............................................3
2.18 Performance Goal.....................................3
2.19 Performance Period...................................3
2.20 Performance Unit.....................................3
2.21 Plan.................................................3
2.22 Restricted Stock Unit................................3
2.23 Restricted Stock Unit Certificate....................3
2.24 Rule 16b-3...........................................3
2.25 SAR Value............................................3
2.26 Stock................................................3
2.27 Stock Appreciation Right.............................3
2.28 Stock Appreciation Right Certificate.................3
2.29 Stock Grant..........................................3
2.30 Stock Grant Certificate..............................4
2.31 Subsidiary...........................................4
2.32 Ten Percent Shareholder..............................4
ss.3. SHARES RESERVED UNDER PLAN.........................................................4
ss.4. EFFECTIVE DATE.....................................................................5
ss.5. COMMITTEE..........................................................................5
ss.6. ELIGIBILITY AND ANNUAL GRANT CAPS..................................................5
ss.7. OPTIONS............................................................................6
7.1 Committee Action.....................................6
7.2 $100,000 Limit.......................................6
7.3 Option Price.........................................6
7.4 Payment..............................................6
7.5 Exercise Period......................................7
7.6 Reload Option Grants Prohibited......................7
ss.8. STOCK APPRECIATION RIGHTS..........................................................8
8.1 Committee Action.....................................8
8.2 Terms and Conditions.................................8
8.3 Exercise.............................................9
ss.9. RESTRICTED STOCK UNITS.............................................................9
9.1 Committee Action.....................................9
9.2 No Adjustment for Cash Dividends....................10
9.3 Payment for Restricted Stock Units..................10
9.4 Deferrals...........................................10
9.5 Performance Goals...................................11
ss.10. STOCK GRANTS.....................................................................11
10.1 Committee Action....................................11
10.2 Conditions..........................................11
10.3 Dividends and Voting Rights.........................12
10.4 Satisfaction of Forfeiture Conditions...............13
10.5 Performance Goals...................................13
ss.11. PERFORMANCE UNITS................................................................13
11.1 Committee Action....................................13
11.2 Conditions..........................................13
11.3 Performance Goals...................................13
11.4 Performance Period..................................14
11.5 Payment for Performance Unit........................14
ss.12. NON-TRANSFERABILITY..............................................................14
ss.13. SECURITIES REGISTRATION..........................................................15
ss.14. LIFE OF PLAN.....................................................................15
ss.15. ADJUSTMENT.......................................................................16
15.1 Capital Structure...................................16
15.2 Mergers.............................................16
15.3 Fractional Shares...................................17
ss.16. CHANGE IN CONTROL................................................................17
ss.17. AMENDMENT OR TERMINATION.........................................................18
ss.18. MISCELLANEOUS....................................................................18
18.1 Shareholder Rights..................................18
18.2 No Contract of Employment...........................18
18.3 Withholding.........................................19
18.4 Construction........................................19
18.5 Other Conditions....................................19
18.6 Rule 16b-3..........................................20
18.7 Loans...............................................20
ii
ss.1
BACKGROUND AND PURPOSE
The purpose of this Plan is to promote the interest of MIM by
authorizing the Committee to grant Options, Stock Appreciation Rights and
Performance Units and to make Stock Grants to Key Employees in order (1) to
attract and retain Key Employees, (2) to provide an additional incentive to each
Key Employee to work to increase the value of Stock and (3) to provide each Key
Employee with a stake in the future of MIM which corresponds to the stake of
each of MIM's stockholders.
ss.2
DEFINITIONS
2.1 Affiliate -- means any organization (other than a Subsidiary) that
would be treated as under common control with MIM underss.414(c) of the Code if
"50 percent" were substituted for "80 percent" in the income tax regulations
underss.414(c) of the Code.
2.2 Board -- means the Board of Directors of MIM.
2.3 Change in Control -- means (i) a "person" or "group" within the
meaning of sections 13(d) and 14(d) of the 1934 Act becomes the "beneficial
owner" (within the meaning of Rule 13d-3 under the 1934 Act) of securities of
MIM (including options, warrants, rights and convertible and exchangeable
securities) representing 50% or more of the combined voting power of MIM's then
outstanding securities in any one or more transactions unless approved by at
least two-thirds of the Board then serving at that time; provided, however, that
purchases by employee benefit plans of MIM and by MIM or its Subsidiaries and
Affiliates shall be disregarded; or (ii) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the operating assets of MIM; or (iii) a merger or
consolidation, or a transaction having a similar effect, where (A) MIM is not
the surviving corporation, (B) the majority of the common stock of MIM is no
longer held by the stockholders of MIM immediately prior to the transaction, or
(C) MIM's common stock is converted into cash, securities or other property
(other than the common stock of a company into which MIM is merged)
2.4 Code -- means the Internal Revenue Code of 1986, as amended.
2.5 Committee -- means a committee of the Board which shall have at
least 2 members, each of whom shall be appointed by and shall serve at the
pleasure of the Board and shall come within the definition of a "non-employee
director" under Rule 16b-3 and an "outside director" underss. 162(m) of the
Code.
2.6 Ending Value -- means, a value for each Performance Unit or a
formula for determining the value of each Performance Unit at the time of
payment.
2.7 Fair Market Value -- means (1) the closing price on any date for a
share of Stock as reported by The Wall Street Journal or, if The Wall Street
Journal no longer reports such closing price, such closing price as reported by
a newspaper or trade journal selected by the Committee or, if no such closing
price is available on such date, (2) such closing price as so reported in
accordance withss. 2.7(1) for the immediately preceding business day, or, if no
newspaper or trade journal reports such closing price or if no such price
quotation is available, (3) the price which the Committee acting in good faith
determines through any reasonable valuation method that a share of Stock might
change hands between a willing buyer and a willing seller, neither being under
any compulsion to buy or to sell and both having reasonable knowledge of the
relevant facts.
2.8 ISO -- means an option granted under this Plan to purchase Stock
which is intended to satisfy the requirements ofss. 422 of the Code.
2.9 Key Employee -- means an employee of MIM or any Subsidiary or
Parent or Affiliate designated by the Committee who, in the judgment of the
Committee acting in its absolute discretion, is key directly or indirectly to
the success of MIM.
2.10 1933 Act -- means the Securities Act of 1933, as amended.
2.11 1934 Act -- means the Securities Exchange Act of 1934, as amended.
2.12 MIM -- means MIM Corporation and any successor to MIM Corporation.
2.13 Non-ISO -- means an option granted under this Plan to purchase
Stock which is intended to fail to satisfy the requirements ofss. 422 of the
Code.
2
2.14 Option -- means an ISO or a Non-ISO which is granted underss.7.
2.15 Option Certificate -- means the written certificate which sets
forth the terms and conditions of an Option granted under this Plan.
2.16 Option Price -- means the price which shall be paid to purchase
one share of Stock upon the exercise of an Option granted under this Plan.
2.17 Parent -- means any corporation which is a parent corporation
(within the meaning ofss. 424(e) of the Code) of MIM.
2.18 Performance Goal -- means a performance goal described inss. 10.3.
2.19 Performance Period -- means a performance period as described
inss. 10.4.
2.20 Performance Unit -- means an award granted underss.10.
2.21 Plan -- means this MIM Corporation 2001 Incentive Stock Plan as
effective as of the date adopted by the Board in 2001 and as amended from time
to time thereafter.
2.22 Restricted Stock Unit -- means an award granted under Section 9.
2.23 Restricted Stock Unit Certificate -- means the written certificate
which sets forth the terms and conditions of a Restricted Stock Unit.
2.24 Rule 16b-3 -- means the exemption under Rule 16b-3 to Section
16(b) of the 1934 Act or any successor to such rule.
2.25 SAR Value -- means the value assigned by the Committee to a share
of Stock in connection with the grant of a Stock Appreciation Right underss.8.
2.26 Stock -- means the common stock, $.0001 par value per share, of
MIM.
2.27 Stock Appreciation Right -- means a right to receive the
appreciation in a share of Stock which is granted underss.8.
2.28 Stock Appreciation Right Certificate -- means the written
certificate which sets forth the terms and conditions of a Stock Appreciation
Right which is not granted to a Key Employee as part of an Option.
2.29 Stock Grant -- means Stock granted underss. 10.
3
2.30 Stock Grant Certificate -- means the written certificate which
sets forth the terms and conditions of a Stock Grant.
2.31 Subsidiary -- means a corporation which is a subsidiary
corporation (within the meaning ofss. 424(f) of the Code) of MIM.
2.32 Ten Percent Shareholder -- means a person who owns (after taking
into account the attribution rules ofss. 424(d) of the Code) more than ten
percent of the total combined voting power of all classes of stock of either
MIM, a Subsidiary or Parent.
ss.3
SHARES RESERVED UNDER PLAN
There shall (subject to ss. 15) be 3,750,000 shares of Stock reserved
for issuance under this Plan (which number shall include the 950,000 shares of
Stock originally reserved for issuance as well as the additional 800,000 shares
reserved for issuance upon stockholder approval at the Company's Annual Meeting
of Stockholders on June 4, 2002 under this Plan prior to this amendment and
restatement of this Plan), and no more than such number of shares shall (subject
to ss. 15) be issued in connection with the exercise of ISOs. Such shares of
Stock shall be reserved to the extent that MIM deems appropriate from authorized
but unissued shares of Stock and from shares of Stock which have been reacquired
by MIM. Any shares of Stock subject to an Option or Stock Grant which remain
unissued after the cancellation, expiration or exchange of such Option or Stock
Grant or which are forfeited after issuance; any shares of Stock subject to
issuance under a Stock Appreciation Right which remain unissued after the
cancellation or expiration of such Stock Appreciation Right; and any shares of
Stock subject to issuance upon the vesting of Restricted Stock Units which
remain unissued after the cancellation or forfeiture of such units thereafter
shall again become available for issuance under this Plan. Any shares of Stock
used to satisfy a withholding obligation shall be treated as issued under this
Plan and not again become available for grants under this Plan.
4
ss.4
EFFECTIVE DATE
The effective date of this Plan shall be the date of its adoption by
the Board, provided the shareholders of MIM (acting at a duly called meeting of
such shareholders) approve such adoption within twelve (12) months of such
effective date. Any Option or Stock Appreciation Right granted or Stock Grant
made before such shareholder approval automatically shall be granted subject to
such approval.
ss.5
COMMITTEE
This Plan shall be administered by the Committee. The Committee acting
in its absolute discretion shall exercise such powers and take such action as
expressly called for under this Plan and, further, the Committee shall have the
power to interpret this Plan and (subject toss. 16 andss. 17 and Rule 16b-3) to
take such other action in the administration and operation of this Plan as the
Committee deems equitable under the circumstances, which action shall be binding
on MIM, on each affected Key Employee and on each other person directly or
indirectly affected by such action.
ss.6
ELIGIBILITY AND ANNUAL GRANT CAPS
Only Key Employees who are employed by MIM or a Subsidiary or Parent
shall be eligible for the grant of ISOs under this Plan. All Key Employees shall
be eligible for the grant of Non-ISOs and Stock Appreciation Rights and for
Stock Grants under this Plan. However, no Key Employee in any calendar year
shall be granted (i) Options to purchase (subject to ss. 15) more than 350,000
shares of Stock, (ii) more than 350,000 Stock Appreciation Rights based on the
appreciation with respect to Stock (subject to ss. 15) (iii) Stock, Stock Grants
for (subject to ss. 15) more than 350,000 shares of Stock; or (iv) Restricted
Stock Units based on the Fair Market Value of (subject to ss.15) more than
350,000 shares of Stock; or any combination of such awards covering in the
aggregate 500,000 shares of Stock. In addition, subsequent to the effective date
of this amendment and restatement of the Plan, the Company will not make Stock
Grants or grants of Restricted Stock Units or Performance Units totaling more
than 1,000,000 shares under the Plan.
5
ss.7
OPTIONS
7.1 Committee Action. The Committee acting in its absolute discretion
shall have the right to grant Options to Key Employees under this Plan from time
to time to purchase shares of Stock. Each grant of an Option to a Key Employee
shall be evidenced by an Option Certificate, and each Option Certificate shall
set forth whether the Option is an ISO or a Non-ISO and shall set forth such
other terms and conditions of such grant as the Committee acting in its absolute
discretion deems consistent with the terms of this Plan; however, if the
Committee grants an ISO and a Non-ISO to a Key Employee on the same date, the
right of the Key Employee to exercise the ISO shall not be conditioned on his or
her failure to exercise the Non-ISO. Options, once issued, may not be repriced
without first obtaining the approval of the shareholders of MIM.
7.2 $100,000 Limit. No Option shall be treated as an ISO to the extent
that the aggregate Fair Market Value of the Stock subject to the Option which
would first become exercisable in any calendar year $100,000. Any such excess
shall instead automatically be treated as a Non-ISO. The Committee shall
interpret and administer the ISO limitation set forth in this ss. 7.2 in
accordance with ss. 422(d) of the Code, and the Committee shall treat this ss.
7.2 as in effect only for those periods for which ss. 422(d) of the Code is in
effect.
7.3 Option Price. The Option Price for each share of Stock subject to
an Option shall be no less than the Fair Market Value of a share of Stock on the
date the Option is granted; provided, however, if the Option is an ISO granted
to a Key Employee who is a Ten Percent Shareholder, the Option Price for each
share of Stock subject to such ISO shall be no less than 110% of the Fair Market
Value of a share of Stock on the date such ISO is granted.
7.4 Payment. The Option Price shall be payable in full upon the
exercise of any Option, and at the discretion of the Committee an Option
Certificate can provide for the payment of the Option Price either in cash, by
check or in Stock which has been held for at least six (6) months and which is
acceptable to the Committee or in any combination of cash, check and such Stock.
The Option Price in addition may be paid through any cashless exercise procedure
which is acceptable to the Committee or its delegate and which is facilitated
through a sale of Stock. Any payment made in Stock shall be treated as equal to
the Fair Market Value of such Stock on the date the certificate for such Stock
(or proper evidence of such certificate) is presented to the Committee or its
delegate in such form as acceptable to the Committee.
6
7.5 Exercise Period. Each Option granted under this Plan shall be
exercisable in whole or in part at such time or times as set forth in the
related Option Certificate, but no Option Certificate shall make an Option
exercisable on or after the earlier of (1) the date which is the fifth
anniversary of the date the Option is granted, if the Option is an ISO and the
Key Employee is a Ten Percent Shareholder on the date the Option is granted, or
(2) the date which is the tenth anniversary of the date the Option is granted,
if the Option is (a) a Non-ISO or (b) an ISO which is granted to a Key Employee
who is not a Ten Percent Shareholder on the date the Option is granted. An
Option Certificate may provide for the exercise of an Option after the
employment of a Key Employee has terminated for any reason whatsoever, including
death or disability.
7.6 Reload Option Grants Prohibited. The Committee may not, as part of
the grant of an Option, provide in the related Option Certificate for "reload"
Option grants (i.e., the automatic grant of an additional Option to pay all or a
part of the Option Price or using Stock to satisfy all or a part of any related
tax withholding requirement.
7
ss. 8.
STOCK APPRECIATION RIGHTS
8.1 Committee Action. The Committee acting in its absolute discretion
shall have the right to grant Stock Appreciation Rights to Key Employees under
this Plan from time to time, and each Stock Appreciation Right grant shall be
evidenced by a Stock Appreciation Right Certificate or, if such Stock
Appreciation Right is granted as part of an Option, shall be evidenced by the
Option Certificate for the related Option.
8.2 Terms and Conditions.
(a) Stock Appreciation Right Certificate. If a Stock
Appreciation Right is evidenced by a Stock Appreciation
Right Certificate, such certificate shall set forth the
number of shares of Stock on which the Key Employee's
right to appreciation shall be based and the SAR Value
of each share of Stock. Such SAR Value shall be no less
than the Fair Market Value of a share of Stock on the
date that the Stock Appreciation Right is granted. The
Stock Appreciation Right Certificate shall set forth
such other terms and conditions for the exercise of the
Stock Appreciation Right as the Committee deems
appropriate under the circumstances, but no Stock
Appreciation Right Certificate shall make a Stock
Appreciation Right exercisable on or after the date
which is the tenth anniversary of the date such Stock
Appreciation Right is granted.
(b) Option Certificate. If a Stock Appreciation Right is
evidenced by an Option Certificate, the number of
shares of Stock on which the Key Employee's right to
appreciation shall be based shall be the same as the
number of shares of Stock subject to the related Option
and the SAR Value for each such share of Stock shall be
no less than the Option Price under the related Option.
8
Each such Option Certificate shall provide that the
exercise of the Stock Appreciation Right with respect
to any share of Stock shall cancel the Key Employee's
right to exercise his or her Option with respect to
such share and, conversely, that the exercise of the
Option with respect to any share of Stock shall cancel
the Key Employee's right to exercise his or her Stock
Appreciation Right with respect to such share. A Stock
Appreciation Right which is granted as part of an
Option shall be exercisable only while the related
Option is exercisable. The Option Certificate shall set
forth such other terms and conditions for the exercise
of the Stock Appreciation Right as the Committee deems
appropriate under the circumstances.
8.3 Exercise. A Stock Appreciation Right shall be exercisable only when
the Fair Market Value of a share of Stock on which the right to appreciation is
based exceeds the SAR Value for such share, and the payment due on exercise
shall be based on such excess with respect to the number of shares of Stock to
which the exercise relates. A Key Employee upon the exercise of his or her Stock
Appreciation Right shall receive a payment from MIM in cash or in Stock issued
under this Plan, or in a combination of cash and Stock, and the number of shares
of Stock issued shall be based on the Fair Market Value of a share of Stock on
the date the Stock Appreciation Right is exercised. The Committee acting in its
absolute discretion shall have the right to determine the form and time of any
payment under this ss. 8.3.
ss. 9.
RESTRICTED STOCK UNITS
9.1 Committee Action. The Committee acting in its absolute discretion
shall have the right from time to time to grant to Key Employees under this Plan
non-equity Restricted Stock Units, the value of each of which corresponds to the
Fair Market Value of a share of Stock. Each Restricted Stock Unit grant shall be
evidenced by a Restricted Stock Unit Certificate that shall set forth the number
of Restricted Stock Units granted to the Key Employee, the vesting schedule
applicable to such Restricted Stock Units and such other terms and conditions of
such grant as the Committee acting in its absolute discretion deems consistent
with the terms of this Plan.
9
9.2 No Adjustment for Cash Dividends. Except for dividend equivalent
adjustments made by the Committee for stock dividends in accordance with ss.
15.1, there shall be no adjustment to Restricted Stock Units for dividends paid
by MIM.
9.3 Payment for Restricted Stock Units. Unless a Key Employee has made
a deferral election in accordance with ss. 9.5, a Key Employee shall receive
upon the vesting of a Restricted Stock Unit payment from MIM in Stock issued
under this Plan, and the number of shares of Stock issued to the Key Employee
shall be equal to the number of Restricted Stock Units that have at such time
become vested. At the time a Key Employee receives shares of stock equal in
number to such Key Employee's vested Restricted Stock Units, such vested
Restricted Stock Units shall automatically be cancelled and shall give the Key
Employee no further rights to payment of any kind.
9.4 Deferrals. The Committee, in its absolute discretion, may permit a
Key Employee to elect to defer such Key Employee's receipt of the delivery of
shares of Stock that would otherwise be due to such Key Employee by virtue of
the vesting of a Restricted Stock Unit; provided such deferral election is made
at least 12 months before the Restricted Stock Unit vests. If any such deferral
election is permitted by the Committee, the Committee shall, in its absolute
discretion, establish additional rules and procedures for such payment
deferrals. However, notwithstanding the preceding provisions of this ss. 9.3 and
notwithstanding any other provision of this Plan to the contrary, the Committee
shall not, (1) in establishing the terms and provisions of any grant of
Restricted Stock Units, or (2) in exercising its powers under this ss. 9.3,
create any arrangement which would constitute an employee pension benefit plan
as defined in ss. 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), unless the arrangement provides benefits solely to one or
more individuals who constitute members of a select group of management or
highly compensated employees (within the meaning of ERISA ss.ss. 201(2),
301(a)(3), 401(a)(1) and 4021(b)(6)).
10
9.5 Performance Goals. The Committee may, at the time a Restricted
Stock Unit is granted, prescribe corporate, divisional, and/or individual
performance goals, applicable to all or any the Restricted Stock Units subject
to the grant. Performance goals may be based on achieving a certain level of
total revenue, earnings, earnings per share or return on equity of MIM and its
and its Subsidiaries and Affiliates, or on the extent of changes in such
criteria.
ss. 10.
STOCK GRANTS
10.1 Committee Action. The Committee acting in its absolute discretion
shall have the right to make Stock Grants to Key Employees. Each Stock Grant
shall be evidenced by a Stock Grant Certificate, and each Stock Grant
Certificate shall set forth the conditions, if any, under which Stock will be
issued under the Stock Grant and the conditions under which the Key Employee's
interest in any Stock which has been issued will become non-forfeitable.
10.2 Conditions.
(a) Conditions to Issuance of Stock. The Committee acting
in its absolute discretion may make the issuance of
Stock under a Stock Grant subject to the satisfaction
of one, or more than one, condition which the Committee
deems appropriate under the circumstances for Key
Employees generally or for a Key Employee in
particular, and the related Stock Grant Certificate
shall set forth each such condition and the deadline
for satisfying each such condition. Stock subject to a
Stock Grant shall be issued in the name of a Key
Employee only after each such condition, if any, has
been timely satisfied, and any Stock which is so issued
shall be held by MIM pending the satisfaction of the
forfeiture conditions, if any, under ss. 10.2(b) for
the related Stock Grant.
11
(b) Forfeiture Conditions. The Committee acting in its
absolute discretion may make Stock issued in the name
of a Key Employee subject to one, or more than one,
objective employment, performance or other forfeiture
condition that the Committee acting in its absolute
discretion deems appropriate under the circumstances
for Key Employees generally or for a Key Employee in
particular, and the related Stock Grant Certificate
shall set forth each such forfeiture condition, if any,
and the deadline, if any, for satisfying each such
forfeiture condition. A Key Employee's non-forfeitable
interest in the shares of Stock underlying a Stock
Grant shall depend on the extent to which he or she
timely satisfies each such condition. Each share of
Stock underlying a Stock Grant shall be unavailable
underss. 3 after such grant is effective unless such
share thereafter is forfeited as a result of a failure
to timely satisfy a forfeiture condition, in which
event such share of Stock shall again become available
underss. 3 as of the date of such forfeiture.
10.3 Dividends and Voting Rights. If a cash dividend is paid on a share
of Stock after such Stock has been issued under a Stock Grant but before the
first date that a Key Employee's interest in such Stock (1) is forfeited
completely or (2) becomes completely non-forfeitable, MIM shall pay such cash
dividend directly to such Key Employee. If a Stock dividend is paid on such a
share of Stock during such period, such Stock dividend shall be treated as part
of the related Stock Grant, and a Key Employee's interest in such Stock dividend
shall be forfeited or shall become non-forfeitable at the same time as the Stock
with respect to which the Stock dividend was paid is forfeited or becomes
non-forfeitable. The disposition of each other form of dividend which is
declared on such a share of Stock during such period shall be made in accordance
with such rules as the Committee shall adopt with respect to each such dividend.
A Key Employee also shall have the right to vote the Stock issued under his or
her Stock Grant during such period.
12
10.4 Satisfaction of Forfeiture Conditions. A share of Stock shall
cease to be subject to a Stock Grant at such time as a Key Employee's interest
in such Stock becomes non-forfeitable under this Plan, and the certificate
representing such share shall be transferred to the Key Employee as soon as
practicable thereafter. 10.5 Performance Goals. The Committee may, at the time a
Stock Grant is made, prescribe corporate, divisional, and/or individual
performance goals, applicable to all or any portion of the shares subject to the
Stock Grant. Performance goals may be based on achieving a certain level of
total revenue, earnings, earnings per share or return on equity of MIM and its
and its Subsidiaries and Affiliates, or on the extent of changes in such
criteria.
ss. 11.
PERFORMANCE UNITS
11.1 Committee Action. The Committee (acting in its sole discretion)
may from time to time grant Performance Units to Key Employees under the Plan
representing the right to receive in cash an amount determined by reference to
certain performance measurements, subject to such restrictions, conditions and
other terms as the Committee may determine.
11.2 Conditions. The written agreement covering Performance Units shall
specify Performance Goals (as defined in ss. 11.3), a Performance Period (as
defined in ss. 11.4)) and an Ending Value. Performance Units granted to a Key
Employee shall be credited to a bookkeeping account established and maintained
for such Key Employee.
11.3 Performance Goals. With respect to each award of Performance
Units, the Committee (acting in its sole discretion) shall specify as
Performance Goals the corporate, division, and/or individual performance goals
which must be satisfied in order for the Key Employee to be entitled to payment
to such Performance Units. Performance Goals may be based on achieving a certain
level of total revenue, earnings, earnings per share or return on equity of MIM
and its Subsidiaries and Affiliates, or on the extent of changes in such
criteria. Different Performance Goals may be established for different awards of
Performance Units, and a Key Employee may be granted more than one award of
Performance Units at the same time.
13
11.4 Performance Period. The Committee (acting in its sole discretion)
shall determine the Performance Period, which shall be the period of time during
which the Performance Goals must be satisfied in order for the Key Employee to
be entitled to payment of Performance Units granted to such Key Employee.
Different Performance Periods may be established for different Performance
Units. Performance Periods may run consecutively or concurrently. 11.5 Payment
for Performance Units. As soon as practicable following the end of a Performance
Period, the Committee shall determine whether the Performance Goals for the
Performance Period have been achieved. As soon as reasonably practicable after
such determination, or at such later date or in such installments as the
Committee shall determine at the time of grant, MIM shall pay to the Key
Employee an amount in cash equal to the Ending Value of each Performance Unit as
to which the Performance Goals have been satisfied; provided, however, that in
no event shall a Key Employee receive an amount in excess of $1,000,000 in
respect of Performance Units for any given year.
ss. 12.
NON-TRANSFERABILITY
No Option, Stock Grant, Restricted Stock Unit, Stock Appreciation
Right, or Performance Unit shall (absent the Committee's consent) be
transferable by a Key Employee other than by will or by the laws of descent and
distribution, and any Option or Stock Appreciation Right shall (absent the
Committee's consent) be exercisable during a Key Employee's lifetime only by the
Key Employee. The person or persons to whom an Option, Stock Grant, Restricted
Stock Unit, Stock Appreciation Right or Performance Unit is transferred by will
or by the laws of descent and distribution (or with the Committee's consent)
thereafter shall be treated as the Key Employee.
14
ss. 13.
SECURITIES REGISTRATION
As a condition to the receipt of shares of Stock under this Plan, the
Key Employee shall, if so requested by MIM, agree to hold such shares of Stock
for investment and not with a view toward resale or distribution to the public
and, if so requested by MIM, shall deliver to MIM a written statement
satisfactory to MIM to that effect. Furthermore, if so requested by MIM, the Key
Employee shall make a written representation to MIM that he or she will not sell
or offer for sale any of such Stock unless a registration statement shall be in
effect with respect to such Stock under the 1933 Act and any applicable federal
or state securities law or he or she shall have furnished to MIM an opinion in
form and substance satisfactory to MIM or its legal counsel satisfactory to MIM
that such registration is not required. Certificates representing the Stock
transferred upon the exercise of an Option, Stock Appreciation Right or
Restricted Stock Unit or upon the lapse of the forfeiture conditions, if any, on
any Stock Grant may at the discretion of MIM bear a legend to the effect that
such Stock has not been registered under the 1933 Act or any applicable state
securities law and that such Stock cannot be sold or offered for sale in the
absence of an effective registration statement as to such Stock under the 1933
Act and any applicable state securities law or an opinion in form and substance
satisfactory to MIM of legal counsel satisfactory to MIM that such registration
is not required.
ss. 14.
LIFE OF PLAN
No Option, Stock Appreciation Right, Restricted Stock Unit or
Performance Unit shall be granted or Stock Grant made under this Plan on or
after the earlier of
(1) the tenth anniversary of the effective date of this
Plan (as determined underss. 4), in which event this
Plan otherwise thereafter shall continue in effect
until all outstanding Options and Stock Appreciation
Rights have been exercised in full or no longer are
exercisable, all Stock issued under any Stock Grants
under this Plan have been forfeited or have become
non-forfeitable, all Restricted Stock Units have vested
and all Performance Periods have ended, or
15
(2) the date on which all of the Stock reserved underss. 3
has (as a result of the exercise of Options or Stock
Appreciation Rights granted under this Plan the
satisfaction of the forfeiture conditions, if any, on
Stock Grants, or the payment of shares upon the vesting
of Restricted Stock Units) been issued or no longer is
available for use under this Plan, in which event this
Plan also shall terminate on such date.
ss. 15.
ADJUSTMENT
15.1 Capital Structure. The number, kind or class (or any combination
thereof) of shares of Stock reserved under ss. 3, the annual grant caps
described in ss. 6, the number, kind or class (or any combination thereof) of
shares of Stock subject to Options, Restricted Stock Units or Stock Appreciation
Rights granted under this Plan, the Option Price of such Options, the SAR Value
of such Stock Appreciation Rights as well as the number, kind or class (or any
combination thereof) of shares of Stock subject to Stock Grants granted under
this Plan shall be adjusted by the Committee in an equitable manner to reflect
any change in the capitalization of MIM, including, but not limited to, such
changes as stock dividends or stock splits.
15.2 Mergers. The Committee as part of any corporate transaction
described in ss. 424(a) of the Code shall have the right to adjust (in any
manner which the Committee in its discretion deems consistent with ss. 424(a) of
the Code) the number, kind or class (or any combination thereof) of shares of
Stock reserved under ss. 3 and the annual grant caps described in ss. 6.
Furthermore, the Committee as part of any corporate transaction described in ss.
424(a) of the Code shall have the right to adjust (in any manner which the
Committee in its discretion deems consistent with ss. 424(a) of the Code) the
number, kind or class (or any combination thereof) of shares of Stock subject to
any outstanding Stock Grants under this Plan and any related grant conditions
16
and forfeiture conditions, and the number, kind or class (or any combination
thereof) of shares subject to Option, Restricted Stock Unit and Stock
Appreciation Right grants previously made under this Plan and the related Option
Price and SAR Value for each such Option Stock Appreciation Right and, further,
shall have the right (in any manner which the Committee in its discretion deems
consistent with ss. 424(a) of the Code and without regard to the annual grant
caps described in ss. 6 of this Plan) to make any Stock Grants and Option Stock
Appreciation Right and Restricted Stock Unit grants to effect the assumption of,
or the substitution for, stock grants and option, restricted stock unit and
stock appreciation right grants previously made by any other corporation to the
extent that such corporate transaction calls for such substitution or assumption
of such stock grants and stock option, restricted stock unit and stock
appreciation right grants.
15.3 Fractional Shares. If any adjustment under this ss. 15 would
create a fractional share of Stock or a right to acquire a fractional share of
Stock, such fractional share shall be disregarded and the number of shares of
Stock reserved under this Plan and the number subject to any Options, Restricted
Stock Unit or Stock Appreciation Right grants and Stock Grants shall be the next
lower number of shares of Stock, rounding all fractions downward. An adjustment
made under this ss. 15 by the Committee shall be conclusive and binding on all
affected persons.
ss. 16.
CHANGE IN CONTROL
If there is a Change in Control of MIM on any date, then any and all
conditions to the exercise of all outstanding Options and Stock Appreciation
Rights on such date, any and all conditions to the vesting of all outstanding
Restricted Stock Units, and any and all outstanding issuance and forfeiture
conditions on any Stock Grants and Performance Units on such date automatically
shall be deemed satisfied in full on such date, and the Board shall have the
right (to the extent expressly required as part of such transaction) to cancel
such Options, Restricted Stock Units, Stock Appreciation Rights, Stock Grants
and Performance Units after providing each Key Employee a reasonable period
(which period shall not be less than 30 days) to exercise his or her Options and
Stock Appreciation Rights and to take such other action as necessary or
17
appropriate to receive the Stock subject to any Restricted Stock Units or Stock
Grants or the cash subject to any Performance Units. ss. 17. AMENDMENT OR
TERMINATION This Plan may be amended by the Board from time to time to the
extent that the Board deems necessary or appropriate; provided, however, (1) no
amendment shall be made absent the approval of the shareholders of MIM to the
extent such approval is required under applicable law and (2) no amendment shall
be made to ss. 16 on or after any date described in ss. 16 which might adversely
affect any rights which otherwise vest on such date. The Board also may suspend
granting Options, Stock Appreciation Rights, Restricted Stock Units or
Performance Units or making Stock Grants under this Plan at any time and may
terminate this Plan at any time; provided, however, the Board shall not have the
right unilaterally to modify, amend or cancel any Option, Restricted Stock Unit,
Stock Appreciation Right or Performance Unit granted or Stock Grant made before
such suspension or termination unless (x) the Key Employee consents in writing
to such modification, amendment or cancellation or (y) there is a dissolution or
liquidation of MIM or a transaction described in ss. 15 or ss. 16.
ss. 18.
MISCELLANEOUS
18.1 Shareholder Rights. No Key Employee shall have any rights as a
shareholder of MIM as a result of the grant of an Option or a Restricted Stock
Unit or Stock Appreciation Right pending the actual delivery of the Stock
subject to such Option, Restricted Stock Unit or Stock Appreciation Right to
such Key Employee. Subject to ss. 10.3, a Key Employee's rights as a shareholder
in the shares of Stock underlying a Stock Grant which is effective shall be set
forth in the related Stock Grant Certificate.
18.2 No Contract of Employment. The grant of an Option, Restricted
Stock Unit, Stock Appreciation Right or a Performance Unit or a Stock Grant to a
Key Employee under this Plan shall not constitute a contract of employment and
shall not confer on a Key Employee any rights upon his or her termination of
employment in addition to those rights, if any, expressly set forth in the
related Option Certificate, Restricted Stock Unit Certificate, Stock
Appreciation Right Certificate, Stock Grant Certificate, or Performance Unit
agreement.
18
18.3 Withholding. Each Option, Stock Appreciation Right, Restricted
Stock Unit, Performance Unit and Stock Grant, shall be made subject to the
condition that the Key Employee consents to whatever action the Committee
directs to satisfy the minimum statutory federal and state tax withholding
requirements, if any, which MIM determines are applicable to the exercise of
such Option or Stock Appreciation Right, the payment of shares upon the vesting
of such Restricted Stock Unit, the satisfaction of any forfeiture conditions
with respect to Stock subject to a Stock Grant issued in the name of the Key
Employee, or to the payment for the Performance Units. The Committee also shall
have the right to provide in an Option Certificate, Stock Appreciation Right
Certificate, Restricted Stock Unit Certificate, Stock Grant Certificate, or
Performance Unit agreement that a Key Employee may elect to satisfy such minimum
statutory federal and state tax withholding requirements through a reduction in
the cash or the number of shares of Stock actually transferred to him or to her
under this Plan. No withholding shall be effected under this Plan which exceeds
the minimum statutory federal and state withholding requirements.
18.4 Construction. All references to sections (ss.) are to sections
(ss.) of this Plan unless otherwise indicated. This Plan shall be construed
under the laws of the State of Delaware. Finally, each term set forth in ss. 2
shall have the meaning set forth opposite such term for purposes of this Plan
and, for purposes of such definitions, the singular shall include the plural and
the plural shall include the singular.
18.5 Other Conditions. Each Option Certificate, Restricted Stock Unit
Certificate, Stock Appreciation Right Certificate or Stock Grant Certificate may
require that a Key Employee (as a condition to the exercise of an Option or a
Stock Appreciation Right, the payment of shares upon the vesting of a Restricted
Stock Unit or the issuance of Stock subject to a Stock Grant) enter into any
agreement or make such representations prepared by MIM, including (without
limitation) any agreement which restricts the transfer of Stock acquired
pursuant to the exercise of an Option, Restricted Stock Unit or a Stock
Appreciation Right or a Stock Grant or provides for the repurchase of such Stock
by MIM.
19
18.6 Rule 16b-3. The Committee shall have the right to amend any
Option, Stock Grant, Restricted Stock Unit or Stock Appreciation Right to
withhold or otherwise restrict the transfer of any Stock or cash under this Plan
to a Key Employee as the Committee deems appropriate in order to satisfy any
condition or requirement under Rule 16b-3 to the extent Rule 16 of the 1934 Act
might be applicable to such grant or transfer.
18.7 Loans. If approved by the Committee, MIM may lend money to, or
guarantee loans made by a third party to, any Key Employee to finance all or a
part of the exercise of any Option granted under this Plan or the purchase of
any Stock subject to a Stock Grant under this Plan, and the exercise of an
Option or the purchase of any such Stock with the proceeds of any such loan
shall be treated as an exercise or purchase for cash under this Plan.
IN WITNESS WHEREOF, MIM Corporation has caused its duly authorized
officer to execute this Plan to evidence its adoption of this Plan.
MIM CORPORATION
By: ___________________________
Date: ___________________________
20
EXHIBIT 5.1
[LETTERHEAD OF MIM CORPORATION]
100 CLEARBROOK ROAD
ELMSFORD, NEW YORK 10523
July 22, 2003
MIM Corporation
100 Clearbrook Road
Elmsford, New York 10523
Ladies and Gentlemen:
I am the general counsel of MIM Corporation, a Delaware corporation
(the "Company"), and have represented the Company as such in connection with the
preparation of a Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission relating to
an aggregate of 3,750,000 shares of common stock, par value $.0001 per share
(the "Shares"), issuable by the Company pursuant to the Company's 2001 Incentive
Stock Plan (the "Plan").
In rendering the opinions set forth herein, I have reviewed the Plan. I
have also examined and relied upon such records, documents, certificates and
other instruments as in my judgment are necessary or appropriate to form the
basis for the opinions hereinafter set forth.
Based upon the foregoing, and in reliance thereon, and subject to the
qualifications, assumptions and exceptions set forth herein, I am of the opinion
that: (i) the Shares are duly authorized; and (ii) upon the issuance of the
Shares, in accordance with the terms of the Plan, the Shares will be validly
issued, fully paid and nonassessable.
The foregoing does not express, or purport to express, any opinion with
respect to the laws of any jurisdiction other than the laws of the State of New
York, the General Corporation Law of the State of Delaware and the federal
securities laws of the United States.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. This opinion is given as of the date hereof and I assume
no obligation to update or supplement this opinion to reflect any facts or
circumstances which may occur after the date of this opinion.
Very truly yours,
/s/ Barry A. Posner
- -------------------
Barry A. Posner
General Counsel
Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the MIM Corporation 2001 Incentive Stock Plan of our report dated February 14, 2003 relating to the consolidated financial statements of MIM Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 2002, filed with the Securities and Exchange Commission. /s/ Ernst & Young, LLP MetroPark, New Jersey July 23, 2003