FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
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OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________________to__________________________
Commission file number 1-11993
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MIM CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 05-0489664
- -------------------------------- --------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Blue Hill Plaza, Pearl River, New York 10965
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(Address of principal executive offices)
(914) 735-3555
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(Registrant's telephone number, including area code)
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(Former name, former address and former fiscal year if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
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APPLICABLE ONLY TO CORPORATE ISSUERS:
On May 7, 1997, there were outstanding 12,091,500 shares of the Company's
$.0001 par value per share common stock ("Common Stock").
MIM CORPORATION
Index
Page Number
Part I. FINANCIAL INFORMATION
Item 1 Financial Statements
Consolidated Balance Sheets at
March 31, 1997 and December 31, 1996 3
Consolidated Statements of Operations for the
three months ended March 31, 1997 and 1996 4
Consolidated Statements of Cash Flows for the
three months ended March 31, 1997 and 1996 5
Notes to the Consolidated Financial Statements 6
Item 2 Management's Discussion and Analysis of Financial
Condition and Results of Operations 7 - 8
Part II.OTHER INFORMATION
Item 6 Exhibits and Reports on Form 8-K 9
SIGNATURES 10
2
Item 1. Financial Information
MIM CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except for share amounts)
March 31, December 31,
1997 1996
--------- ------------
(Unaudited)
ASSETS
Current assets
Cash and cash equivalents $ 7,939 $ 1,834
Investment securities 16,345 28,113
Receivables, less allowance for doubtful accounts of $1,667
and $1,088 at March 31, 1997 and December 31, 1996,
respectively 19,385 18,646
Prepaid expenses and other current assets 1,136 1,129
-------- --------
Total current assets 44,805 49,722
Investment securities, net of current portion 14,300 8,925
Property and equipment, net 2,482 2,423
Due from affiliates, less allowance for doubtful accounts of $2,157
at March 31, 1997 and December 31, 1996 269 628
Other assets, net 113 102
-------- --------
Total assets $ 61,969 $ 61,800
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Current portion of capital lease obligations $ 203 $ 213
Accounts payable 736 1,562
Claims payable 20,292 17,278
Payables to plan sponsors and others 7,994 10,174
Accrued expenses 472 926
-------- --------
Total current liabilities 29,697 30,153
Capital lease obligations, net of current portion 332 375
Commitments and contingencies
Minority interest 1,127 1,129
Stockholders' equity
Preferred Stock, $.0001 par value; 5,000,000 shares authorized,
no shares issued or outstanding - -
Common Stock, $.0001 par value; 40,000,000 shares authorized,
12,083,300 and 12,040,600 shares issued and outstanding
at March 31, 1997 and December 31, 1996, respectively 1 1
Additional paid-in capital 73,450 73,443
Accumulated deficit (40,866) (41,564)
Stockholder notes receivable (1,772) (1,737)
-------- --------
Total stockholders' equity 30,813 30,143
-------- --------
Total liabilities and stockholders' equity $ 61,969 $ 61,800
======== ========
The accompanying notes are an integral part of these consolidated financial
statements.
3
MIM CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except for per share amounts)
Three months ended
March 31,
-----------------------
1997 1996
-------- --------
(Unaudited)
Revenue $ 70,811 $ 66,589
Cost of revenue 66,829 64,790
-------- --------
Gross profit 3,982 1,799
General and administrative expenses 3,909 2,235
-------- --------
Income (loss) from operations 73 (436)
Interest income, net 623 137
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Income (loss) before minority interest 696 (299)
Minority interest 2 9
-------- ---------
Net income (loss) $ 698 $ (290)
======== =========
Net income (loss) per common
and common equivalent share $ 0.05 $ (0.04)
======== =========
Weighted average shares outstanding 15,121 8,024
======== =========
The accompanying notes are an integral part of these consolidated financial
statements.
4
MIM CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Three months ended
March 31,
---------------------
1997 1996
-------- --------
(Unaudited)
Cash flows from operating activities:
Net income (loss) $ 698 $ (290)
Adjustments to reconcile net income (loss) to net cash provided
by (used in) operating activities:
Net loss allocated to minority interest (2) (9)
Depreciation and amortization 239 140
Stock option charges 7 -
Provision for losses on receivables and due from affiliates 579 -
Changes in assets and liabilities:
Receivables (1,318) 1,292
Prepaid expenses and other assets (7) (31)
Accounts payable (826) (33)
Claims payable 3,014 (423)
Payables to plan sponsors and others (2,180) 1,929
Accrued expenses (454) 404
-------- --------
Net cash provided by (used in) operating activities (250) 2,979
-------- --------
Cash flows from investing activities:
Purchase of property and equipment (312) (53)
Purchase of investment securites (14,832) -
Proceeds from maturities of investment securities 21,239 -
Increase in other assets (11) -
Stockholder loans, net (35) 36
Loans to affiliates, net 359 (225)
-------- --------
Net cash provided by (used in) investing activities 6,408 (242)
-------- --------
Cash flows from financing activities:
Principal payments on capital lease obligations (53) (56)
-------- --------
Net cash used in financing activities (53) (56)
-------- --------
Net increase in cash and cash equivalents 6,105 2,681
Cash and cash equivalents--beginning of period 1,834 1,804
-------- --------
Cash and cash equivalents--end of period $ 7,939 $ 4,485
======== ========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the period for:
Income taxes $ - $ -
======== ========
Interest $ 12 $ 6
======== ========
SUPPLEMENTAL DISCLOSURE OF NONCASH TRANSACTIONS:
Equipment acquired under capital lease obligations $ - $ -
======== ========
Distribution to stockholder through the cancellation of
stockholder notes receivable $ - $ 622
======== ========
The accompanying notes are an integral part of these consolidated financial
statements.
5
Mim Corporation And Subsidiaries
Notes To The Consolidated Financial Statements
(unaudited)
(in thousands, except for share and per share amounts)
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited consolidated interim financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information, pursuant to the rules and regulations of the Securities
and Exchange Commission. Pursuant to such rules and regulations, certain
information and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted. In the opinion of management, all adjustments considered
necessary for a fair presentation of the financial statements, primarily
consisting of normal recurring adjustments, have been included. The results of
operations and cash flows for the three months ended March 31, 1997 are not
necessarily indicative of the results of operations or cash flows which may be
reported for the remainder of 1997.
These consolidated financial statements should be read in conjunction with the
consolidated financial statements, notes and information included in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996
(the "Form 10-K").
The accounting policies followed for interim financial reporting are the same
as those disclosed in Note 2 to the consolidated financial statements included
in the Form 10-K.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, Earnings Per Share (SFAS 128). This
Statement establishes standards for computing and presenting earnings per share
and applies to entities with publicly traded common stock or potential common
stock. SFAS 128 is effective for financial statements for both interim and
annual periods ending after December 15, 1997 and early adoption is not
permitted. When adopted, the statement will require restatement of prior years'
earnings per share. The Company will adopt this statement for its fiscal year
ending December 31, 1997. Assuming that SFAS 128 had been implemented, basic
earnings per share would have been $0.06 and $(0.04), and diluted earnings per
share would have been $0.05 and $(0.04), for the three month periods ended March
31, 1997 and March 31, 1996, respectively.
6
Item 2. Management's Discussion And Analysis Of Financial
Condition And Results Of Operations
The following discussion and analysis should be read in conjunction with the
Consolidated Financial Statements, the related Notes to the Consolidated
Financial Statements and Management's Discussion and Analysis of Financial
Condition and Results of Operations included in the Form 10-K and the
Consolidated Financial Statements and the related Notes to the Consolidated
Financial Statements included in Item 1 of this Report.
This Report contains statements which constitute forward looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995. The
matters discussed in this Report include statements regarding the intent, belief
or current expectations of the Company, its directors or its officers with
respect to the future operating performance of the Company and the results and
the effect of legal proceedings. 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 in
the forward looking statements as a result of various factors. The accompanying
information contained in this Report identifies important factors that could
cause such differences.
Overview
A majority of the Company's revenues to date have been derived from operations
in the State of Tennessee in conjunction with RxCare of Tennessee, Inc.
("RxCare"), a pharmacy services administrative organization owned by the
Tennessee Pharmacists Association. The Company assisted RxCare in defining and
marketing pharmacy benefit services to private health plan sponsors on a
consulting basis in 1993, but did not commence substantial operations until
January 1994 when RxCare began servicing several of the health plan sponsors
involved in the newly instituted TennCare(R) state health program. At March 31,
1997, the Company provided pharmacy benefit management services to 34 health
plan sponsors with an aggregate of approximately 1.2 million plan members,
primarily on a capitated basis in Tennessee.
Results Of Operations
Three months ended March 31, 1997 compared to three months ended March 31, 1996
For the three months ended March 31, 1997, the Company recorded revenue of
$70.8 million compared with revenue of $66.6 million for the three months ended
March 31, 1996. The increase of $4.2 million in revenue was due primarily to
the servicing of 13 new plan sponsors covering over 121,000 plan members
primarily in the Northeast, South Central and Pacific regions of the United
States. Slight decreases in TennCare enrollment were offset by increases in per
member revenue due to several contract restructurings. During the first three
months of 1997, approximately 68% of the Company's revenue was generated through
capitated contracts, compared with 92% during the first three months of 1996.
Cost of revenue for the three months ended March 31, 1997 increased to $66.8
million compared with cost of revenue of $64.8 million for the three months
ended March 31, 1996. The increase of $2.0 million in cost of revenue was
primarily due to an increase in claims costs from the added health plans, which
was offset in part by lower claims costs resulting from slight reductions in
TennCare enrollment. As a percentage of revenue, cost of revenue decreased to
94.4% for the three months ended March 31, 1997 from 97.3% for the three months
ended March 31, 1996.
General and administrative expenses were $3.9 million for the three months
ended March 31, 1997 and $2.2 million for the three months ended March 31, 1996,
an increase of 74.9%. The $1.7 million increase was attributable to increases
in operations, sales and marketing and headquarter personnel to support the
anticipated needs of the business as well as increases in consulting and legal
fees, depreciation expense and costs related to further development of the
Company's management information systems. As a percentage of revenue, general
and administrative expenses increased to 5.5% for the three months ended March
31, 1997 from 3.4% for the three months ended March 31, 1996.
7
For the three months ended March 31, 1997, the Company recorded net income of
$0.7 million, or $0.05 per share. This compares with a net loss of $0.3
million, or $0.04 per share for the three months ended March 31, 1996. This
improvement was a result of the above-described changes in revenue and expenses.
Liquidity And Capital Resources
For the three months ended March 31, 1997, net cash used by operating
activities totaled $0.3 million, primarily due to decreases in payables to plan
sponsors and others and increases in receivables. Such uses were offset by the
generation of $0.7 million in net income along with increases in claims payable.
Investment activities provided $6.4 million in cash due to the maturity of short
term investment securities.
At March 31, 1997, the Company had working capital of $15.1 million, compared
to $19.6 million at December 31, 1996. The majority of this $4.5 million
decrease relates to the purchase of long term investment securities upon the
maturity of short term investment securities. Cash and cash equivalents
increased to $7.9 million at March 31, 1997 compared with $1.8 million at
December 31, 1996. The Company had investment securities held to maturity of
$30.6 million and $37.0 million at March 31, 1997 and December 31, 1996,
respectively. The investments are primarily corporate debt securities rated A or
better.
At March 31, 1997, the Company had, for tax purposes, unused net operating
loss carryforwards of approximately $6.1 million that may be available to offset
future taxable income, if any, and which will begin expiring in 2008. Use of
these carryforwards may be limited by the Tax Reform Act of 1986.
The Company believes that its improved financial condition and capital
structure, since its initial public offering which raised approximately $47
million in August 1996, has enhanced the Company's ability to negotiate and
obtain additional contracts with plan sponsors and other potential customers.
The Company believes that it has sufficient cash on hand or available to fund
the Company's anticipated working capital and other cash needs for the
foreseeable future. The Company intends to offset, against profit sharing
amounts, if any, due RxCare in the future under the Company's contract with
RxCare, approximately $7.1 million representing RxCare's share of the Company's
cummulative losses and amounts previously advanced or paid to RxCare.
As part of its continued efforts to expand its pharmacy management business,
the Company expects to incur additional sales and marketing expenses. The
Company also may pursue joint venture arrangements, business acquisitions and
other transactions designed to expand its pharmacy management business, which
the Company would expect to fund from cash on hand or future indebtedness or, if
appropriate, the sale or exchange (in the case of a merger) of equity securities
of the Company.
Other Matters
The Company's pharmaceutical reimbursement claims historically have been
subject to a significant increase over annual averages from October through
February, which the Company believes is due to increased medical problems during
the colder months. Changes in prices charged by manufacturers and wholesalers
for pharmaceuticals affect the Company's cost of revenue. The Company does not
believe that inflation has had a material impact on the results of its
operations.
The TennCare program has been controversial since its inception and has
generated government investigations and adverse publicity. There can be no
assurances that the Company's association with the TennCare program will not
adversely affect the Company's business in the future.
8
PART II - OTHER INFORMATION
Item 6 - Exhibits And Reports On Form 8-K
(a) Exhibits
Exhibit Number Description
--------------- -----------
10.1 Employment Agreement between MIM Corporation
and Barry A. Posner dated as of March 26, 1997
27 Financial Data Schedule
(b) Reports on Form 8-K
The registrant did not file any Reports on Form 8-K during the quarter for which
this Report is filed.
9
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MIM Corporation
Date: May 14, 1997 _________________________________________________
Richard H. Friedman
Chief Operating Officer, Chief Financial Officer,
Treasurer and Director
(Principal Financial Officer)
10
EXHIBIT 10.1
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EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT dated as of March 26, 1997, by and between MIM
Corporation with its principal place of business at One Blue Hill Plaza, 15th
Floor, P.O. Box 1670, Pearl River, New York 10965-8670 (hereinafter referred to
as the "Company"), and Barry A. Posner residing at 105 West 73rd Street,
Apartment 6C, New York, New York 10023 (hereinafter referred to as the
"Executive").
WHEREAS, the Company wishes to offer employment to the Executive, and the
Executive wishes to accept such offer, on the terms set forth below;
Accordingly, the parties hereto agree as follows:
1. Term. The Company hereby employs the Executive, and the Executive
----
hereby accepts such employment, commencing as of the date hereof and ending when
terminated in accordance with the provisions of Section 4 or Section 5 (the
period during which the Executive is employed hereunder being hereinafter
referred to as the "Term").
2. Duties. The Executive, in his capacity as General Counsel and Corporate
------
Secretary of the Company, shall faithfully perform for the Company the duties of
said offices and such other duties of an executive, managerial, or
administrative nature as shall be specified and designated from time to time by
the Board of Directors of the Company (the "Board"), the Chief Executive Officer
and Chief Operating Officer of the Company. The Executive shall devote
substantially all of his business time and effort to the
performance of his duties hereunder.
3. Compensation.
-------------
3.1 Salary. The Company shall pay the Executive during the Term an
------
initial salary at the rate of $165,000 per annum (the "Annual Salary"), in
accordance with the customary payroll practices of the Company applicable to
senior executives, in installments not less frequently than monthly. The Chief
Operating Officer of the Company shall, three months from the date hereof,
review the Executive and, in the sole discretion of the Chief Operating Officer
of the Company and in the event of a favorable review, increase the Annual
Salary to $175,000. Thereafter, from time to time, and at least annually, the
Board or the Chief Operating Officer of the Company shall review the Executive's
Annual Salary and if the Board or the Chief Operating Officer, in its
discretion, increases the Annual Salary, then upon such increase, the increased
amount shall thereafter be deemed to be the "Annual Salary." Annual Salary shall
not be reduced at any time, including, without limitation, after any increase
provided under this Section 3.1 .
3.2 Benefits - In General. The Executive shall be permitted during the
--------
Term to participate in any group life, hospitalization or disability insurance
plans, health programs, pension and profit sharing plans, salary reviews, and
similar benefits (other than bonuses and stock options or other equity-based
compensation, which are provided for under Section 3.3 and 3.4, or severance,
displacement or other similar benefits) which are of a type available from time
to time to other senior
2
executives of the Company generally, in each case to the extent that the
Executive is eligible under the terms of such plans or programs.
3.3 Specific Benefits. Without limiting the generality of Section 3.2,
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the Executive during the Term shall (i) be eligible to participate in the
Company's Executive Bonus Program established for the benefit of senior officers
in accordance with its terms as amended from time to time (at levels consistent
with the Executive's position relative to other members of senior management),
(ii) be entitled to a life insurance policy with a face value of $1,000,000 the
premium for which shall be paid entirely by the Company (or by the Executive and
reimbursed by the Company) and (iii) be eligible for director and officer
liability insurance to the extent provided to other senior executives of the
Company generally.
3.4 Grant of Option. The Executive shall be granted an option, which
---------------
shall not be required to be qualified under Section 422 of the Internal Revenue
Code of 1986, as amended, to purchase 50,000 shares of common stock of the
Company, par value .0001 per share, at a per-share price equal to the closing
sales price per share on the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") on the date hereof. Subject to Section 5
hereof and the applicable award agreement, thirty-three and one-third percent
(33 1/3%) of the option shall vest and become exercisable, on each of the first,
second, and third anniversaries of the date hereof. The option shall be subject
to the terms of a definitive stock option agreement to be
3
provided by the Company.
3.5 Vacation. The Executive shall be entitled to vacation of 15 business
--------
days per year, increasing to 20 business days per year on the first anniversary
of the date hereof, to be accrued and available in accordance with the policies
applicable to senior executives of the Company generally (other than the
Founders).
3.6 Automobile. The Company will provide the Executive a monthly
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allowance of $450 for the use of an automobile.
3.7 Expenses. The Company shall pay or reimburse the Executive for all
--------
ordinary and reasonable out-of-pocket expenses actually incurred (and, in the
case of reimbursement, paid) by the Executive during the Term in the performance
of the Executive's services under this Agreement including, but not limited to,
business travel expenses; provided that the Executive submits proof of such
expenses, with the properly completed forms as prescribed from time to time by
the Company, in accordance with the policies applicable to senior executives of
the Company generally.
4. Termination upon Death or Disability.
-------------------------------------
4.1 Termination upon Death. If the Executive dies during the Term, the
----------------------
obligations of the Company to or with respect to the Employee shall terminate in
their entirety except as otherwise provided under this Section 4. Upon death,
(i) the Executive's estate or beneficiaries shall be entitled to receive any
Annual Salary and other benefits (including bonuses awarded but not yet paid)
earned and accrued under this Agreement prior to the
4
date of termination (and reimbursement for expenses incurred prior to the date
of termination as set forth in Section 3.7), and (ii) the Executive's estate and
beneficiaries shall have no further rights to any other compensation or benefits
hereunder on or after the termination of employment, or any other rights
hereunder.
4.2 Termination upon Disability. If the Executive by virtue of ill health
---------------------------
or other disability is unable to perform substantially and continuously the
duties assigned to him for more than 180 consecutive or non-consecutive days out
of any consecutive twelve-month period, the Company shall have the right, to the
extent permitted by law, to terminate the employment of the Executive upon
notice in writing to the Executive; provided that the Company will have no right
to terminate the Executive's employment if, in the opinion of a qualified
physician reasonably acceptable to the Company, it is reasonably certain that
the Executive will be able to resume the Executive's duties on a regular full-
time basis within 30 days of the date the Executive receives notice of such
termination. Upon a termination of employment by virtue of disability, (i) the
Executive shall receive Annual Salary and other benefits (including bonuses
awarded but not yet paid) earned and accrued under this Agreement prior to the
effective date of the termination of employment (and reimbursement for expenses
incurred prior to the effective date of the termination of employment as set
forth in Section 3.7); (ii) the Executive shall receive for a period of nine
months after termination of employment (A) the Annual Salary that the Executive
was receiving at the time of such termination of employment,
5
payable in accordance with Section 3.1 and (B) such continuing coverage under
the benefit plans and programs the Executive would have received under this
Agreement as would have applied in the absence of such termination; it being
expressly understood and agreed that nothing in this clause (ii) shall restrict
the ability of the Company to amend or terminate such plans and programs from
time to time in its sole discretion; provided, however, that the Company shall
in no event be required to provide any coverage after such time as the Executive
becomes entitled to coverage under the benefit plans and programs of another
employer or recipient of the Executive's services (and provided, further, that
such entitlement shall be determined without regard to any individual waivers or
other arrangements); and (iii) the Executive shall have no further rights to any
other compensation or benefits hereunder on or after the termination of
employment, or any other rights hereunder.
5. Certain Terminations of Employment.
-----------------------------------
5.1 Termination for Cause; Termination of Employment by the
-------------------------------------------------------
Executive without Good Reason.
- -----------------------------
(a) For purposes of this Agreement, "Cause" shall mean
(i) the Executive's conviction of a felony or a crime of moral
turpitude; or
(ii) the Executive's commission of unauthorized acts
intended to result in the Executive's personal enrichment at the
material expense of the Company; or
(iii) the Executive's material violation of the Executive's duties
or responsibilities to the Company which constitute willful
misconduct or dereliction of duty, or the material breach of the
covenants contained in Section 6; or
(iv) the Executive's other material breach of this Agreement which
breach shall have continued
6
unremedied for 10 days after written notice by the Company to
the Executive specifying such breach.
(b) The Company may terminate the Executive's employment hereunder for
Cause, and the Executive may terminate his employment upon written notice to the
Company which specifies an effective date of termination of employment not less
than 30 days from the date of such notice. If the Company terminates the
Executive for Cause, or the Executive terminates his employment and the
termination by the Executive is not covered by Section 4, 5.2, or 5.3, (i) the
Executive shall receive Annual Salary and other benefits (including bonuses
awarded but not yet paid) earned and accrued under this Agreement prior to the
effective date of the termination of employment (and reimbursement for expenses
incurred prior to the effective date of the termination of employment as set
forth in Section 3.7); and (ii) the Executive shall have no further rights to
any other compensation or benefits hereunder on or after the termination of
employment, or any other rights hereunder.
5.2 Termination Without Cause; Termination for Good Reason.
-------------------------------------------------------
(a) For purposes of this Agreement, "Good Reason" shall mean the
existence of any one or more of the following conditions that shall continue for
more than 45 days following written notice thereof by the Executive to the
Company:
(i) the material reduction of the Executive's authority,
duties and responsibilities, or the assignment to the Executive
of duties materially inconsistent with the Executive's position
or positions with the Company;
(ii) the relocation of the Executive's office to more than 50 miles
from the George Washington
7
Bridge;
(iii) the failure by the Company to obtain an agreement in form and
substance reasonably satisfactory to the Executive from any
successor to the business of the Company upon a Change of
Control (as defined below) to assume and agree to perform this
Agreement; or
(iv) the Company's material and continuing breach of this Agreement.
(b) The Company may terminate the Executive's employment at any time for
any reason and the Executive may terminate the Executive's employment with the
Company for Good Reason. If the Company terminates the Executive's employment
and the termination is not covered by Section 4, 5.1 or 5.3, or the Executive
terminates his employment for Good Reason and the termination by the Executive
is not covered by Section 5.3, (i) the Executive shall receive Annual Salary and
other benefits (including bonuses awarded but not yet paid) earned and accrued
under this Agreement prior to the effective date of the termination of
employment (and reimbursement for expenses incurred prior to the effective date
of the termination of employment as set forth in Section 3.7); (ii) the
Executive shall receive for a period of nine months after termination of
employment (A) the Annual Salary that the Executive was receiving at the time of
such termination of employment, payable in accordance with Section 3.1 and (B)
such continuing coverage under the benefit plans and programs the Executive
would have received under this Agreement as would have applied in the absence of
such termination; it being expressly understood and agreed that nothing in this
clause (ii) shall restrict the ability of the Company to amend or terminate such
8
plans and programs from time to time in its sole discretion; provided, however,
that the Company shall in no event be required to provide any coverage after
such time as the Executive becomes entitled to coverage under the benefit plans
and programs of another employer or recipient of the Executive's services (and
provided, further, that such entitlement shall be determined without regard to
any individual waivers or other arrangements); (iii) all outstanding unvested
options held by the Executive shall vest and become immediately exercisable and
shall otherwise be exercisable in accordance with their terms and the Executive
shall become vested in any pension or other deferred compensation other than
pension or deferred compensation under a plan intended to be qualified under
Section 401(a) or 403(a) of the Internal Revenue Code of 1986, as amended; and
(iv) the Executive shall have no further rights to any other compensation or
benefits hereunder on or after the termination of employment, or any other
rights hereunder.
5.3 Certain Terminations after Change of Control.
--------------------------------------------
(a) For purposes of this Agreement, "Change of Control" means the
occurrence of one of the following:
(i) a "person" or "group" within the meaning of sections
13(d) and 14(d) of the Securities and Exchange Act of 1934 (the
"Exchange Act"), becomes the "beneficial owner" (within the
meaning of Rule 13d-3 under the Exchange Act) of securities of
the Company (including options, warrants, rights and convertible
and exchangeable securities) representing 50% or more of the
combined voting power of the Company's then outstanding
securities in any one or more transactions; provided, however,
that purchases by employee benefit plans of the Company and by
the Company or its affiliates shall
9
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 the Company; or
(iii) a merger or consolidation, or a transaction having a similar
effect unless such merger, consolidation or similar transaction
is with a subsidiary of the Company or with another company, a
majority of whose outstanding capital stock is owned by the same
persons or entities who own a majority of the Company's
outstanding common stock (the "Common Stock") at such time,
where (A) the Company is not the surviving corporation, (B) the
majority of the Common Stock of the Company is no longer held by
the stockholders of the Company immediately prior to the
transaction, or (C) the Company's Common Stock is converted into
cash, securities or other property (other than the common stock
of a company into which the Company is merged).
(b) If, within the one-year period commencing upon any Change of Control,
the Executive is terminated by the Company or a successor entity and the
termination is not covered by Section 4 or 5.1, or, within such period, the
Executive elects to terminate his employment after the Company materially
reduces the Executive's authority, duties and responsibilities, or assigns the
Executive duties materially inconsistent with the Executive's position or
positions with the Company prior to such Change of Control, (i) the Executive
shall receive Annual Salary and other benefits (including bonuses awarded but
not yet paid) earned and accrued under this Agreement prior to the effective
date of the termination of employment (and reimbursement for expenses incurred
prior to the effective date of the termination of employment as set forth in
Section 3.7); (ii) the Executive shall receive for a period of one year after
termination of employment (A) the Annual Salary that the
10
Executive was receiving at the time of such termination of employment, payable
in accordance with Section 3.1 and (B) such continuing coverage under the
benefit plans and programs the Executive would have received under this
Agreement as would have applied in the absence of such termination; it being
expressly understood and agreed that nothing in this clause (ii) shall restrict
the ability of the Company to amend or terminate such plans and programs from
time to time in its sole discretion; provided, however, that the Company shall
in no event be required to provide any coverage after such time as the Executive
becomes entitled to coverage under the benefit plans and programs of another
employer or recipient of the Executive's services (and provided, further, that
such entitlement shall be determined without regard to any individual waivers or
other arrangements); (iii) all outstanding unvested options held by the
Executive shall vest and become immediately exercisable and shall otherwise be
exercisable in accordance with their terms and the Executive shall become vested
in any pension or other deferred compensation other than pension or deferred
compensation under a plan intended to be qualified under Section 401(a) or
403(a) of the Internal Revenue Code of 1986, as amended; and (iv) the Executive
shall have no further rights to any other compensation or benefits hereunder on
or after the termination of employment, or any other rights hereunder.
6. Covenant of the Executive.
--------------------------
6.1 Covenant Against Competition; Other Covenants.
---------------------------------------------
The Executive acknowledges that (i) the principal business of the
11
Company is the provision of a broad range of services designed to promote the
cost-effective delivery of pharmacy benefits (such business, and any and all
other businesses that after the date hereof, and from time to time during the
Term, become material with respect to the Company's then-overall business,
herein being collectively referred to as the "Business"); (ii) the Company is
dependent on the efforts of a certain limited number of persons who have
developed the Company's Business; (iii) the Company's Business is, in part,
national in scope; (iv) the Executive's work for the Company has given and will
continue to give him access to the confidential affairs and proprietary
information of the Company; (v) the covenants and agreements of the Executive
contained in this Section 6 are essential to the business and goodwill of the
Company; and (vi) the Company would not have entered into this Agreement but for
the covenants and agreements set forth in this Section 6. Accordingly, the
Executive covenants and agrees that:
(a) If at any time during his employment with the Company the Executive is
no longer serving as General Counsel and is given a title or is otherwise
assigned a position which principally has business responsibilities, and the
Company gives the Executive notice of such fact, then during the period
commencing on the date upon which the Executive receives such notice from the
Company and ending one year following (i) termination of the Executive's
employment with the Company (irrespective of the reason for such termination) or
(ii) payment of any Annual Salary in accordance with Section 4 or 5 hereof
(unless such termination is by the Company without Cause),
12
whichever occurs last, the Executive shall not engage, directly or indirectly
(which includes, without limitation, owning, managing, operating, controlling,
being employed by, giving financial assistance to, participating in or being
connected in any material way with any person or entity other than the Company),
anywhere in the United States in (i) the Business and (ii) any component of the
Business; provided, however, that the Executive's ownership as a passive
investor of less than two percent (2%) of the issued and outstanding stock of a
publicly held corporation shall not be deemed to constitute competition.
(b) During and after the period during which the Executive is employed, the
Executive shall keep secret and retain in strictest confidence, and shall not
use for his benefit or the benefit of others, except in connection with the
business and affairs of the Company and its affiliates, all confidential matters
relating to the Company's Business and the business of any of its affiliates and
to the Company and any of its affiliates, learned by the Executive heretofore or
hereafter directly or indirectly from the Company or any of its affiliates (the
"Confidential Company Information"), including, without limitation, information
with respect to (i) the strategic plans, budgets, forecasts, intended expansions
of product, service, or geographic markets of the Company and its affiliates,
(ii) sales figures, contracts, agreements, and undertakings with or with respect
to customers, (iii) profit or loss figures, and (iv) customers, clients,
suppliers, sources of supply and customer lists, and shall not disclose such
Confidential Company Information to anyone outside of
13
the Company except with the Company's express written consent and except for
Confidential Company Information which is at the time of receipt or thereafter
becomes publicly known through no wrongful act of the Executive or is received
from a third party not under an obligation to keep such information confidential
and without breach of this Agreement. Notwithstanding the foregoing, this
Section 6.1(b) shall not apply to the extent that the Executive is acting to the
extent necessary to comply with legal process; provided that in the event that
the Executive is subpoenaed to testify or to produce any information or
documents before any court, administrative agency or other tribunal relating to
any aspect pertaining to the Company, he shall immediately notify the Company
thereof.
(c) During the period commencing on the date hereof and
ending two years following the date upon which the Executive shall cease to be
an employee of the Company or its affiliates, the Executive shall not, without
the Company's prior written consent, directly or indirectly, solicit or
encourage to leave the employment or other service of the Company or any of its
affiliates, any employee or independent contractor thereof or hire (on behalf of
the Executive or any other person or entity) any employee or independent
contractor who has left the employment or other service of the Company or any of
its affiliates within one year of the termination of such employee's or
independent contractor's employment or other service with the Company and its
affiliates. During such period, the Executive will not, whether for his own
account or for the account of any other person, firm,
14
corporation or other business organization, intentionally interfere with the
Company's or any of its affiliates' relationship with, or endeavor to entice
away from the Company or any of its affiliates, any person who during the Term
is or was a customer or client of the Company or any of its affiliates.
(d) All memoranda, notes, lists, records, property and any other tangible
product and documents (and all copies thereof) made, produced or compiled by the
Executive or made available to the Executive concerning the Business of the
Company and its affiliates shall be the Company's property and shall be
delivered to the Company at any time on request.
6.2 Rights and Remedies upon Breach.
--------------------------------
(a) The Executive acknowledges and agrees that any breach by him of any of
the provisions of Section 6.1 (the "Restrictive Covenants") would result in
irreparable injury and damage for which money damages would not provide an
adequate remedy. Therefore, if the Executive breaches, or threatens to commit a
breach of, any of the provisions of Section 6.1, the Company and its affiliates
shall have the following rights and remedies, each of which rights and remedies
shall be independent of the other and severally enforceable, and all of which
rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company and its affiliates under law or in
equity (including, without limitation, the recovery of damages):
(i) The right and remedy to have the Restrictive Covenants specifically
enforced (without posting bond and without
15
the need to prove damages) by any court having equity jurisdiction, including,
without limitation, the right to an entry against the Executive of restraining
orders and injunctions (preliminary, mandatory, temporary and permanent) against
violations, threatened or actual, and whether or not then continuing, of such
covenants.
(ii) The right and remedy to require the Executive to account for and
pay over to the Company and its affiliates all compensation, profits, monies,
accruals, increments or other benefits (collectively, "Benefits") derived or
received by him as the result of any transactions constituting a breach of the
Restrictive Covenants, and the Executive shall account for and pay over such
Benefits to the Company and, if applicable, its affected affiliates.
(b) The Executive agrees that in any action seeking specific performance or
other equitable relief, he will not assert or contend that any of the provisions
of this Section 6 are unreasonable or otherwise unenforceable. The existence of
any claim or cause of action by the Executive, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement of the
Restrictive Covenants.
7. Other Provisions.
-----------------
7.1 Severability. The Executive acknowledges and agrees that (i) he has
------------
had an opportunity to seek advice of counsel in connection with this Agreement
and (ii) the Restrictive Covenants are reasonable in geographical and temporal
scope and in all other respects. If it is determined that any of the provisions
of this Agreement, including, without limitation, any of the
16
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the provisions of this Agreement shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
7.2 Duration and Scope of Covenants. If any court or other decision-maker
-------------------------------
of competent jurisdiction determines that any of Executive's covenants contained
in this Agreement, including, without limitation, any of the Restrictive
Covenants, or any part thereof, is unenforceable because of the duration or
geographical scope of such provision, then, after such determination has become
final and unappealable, the duration or scope of such provision, as the case may
be, shall be reduced so that such provision becomes enforceable and, in its
reduced form, such provision shall then be enforceable and shall be enforced.
7.3 Enforceability; Jurisdictions. Any controversy or claim arising out of
-----------------------------
or relating to this Agreement or the breach of this Agreement that is not
resolved by Executive and the Company (or its affiliates, where applicable),
other than those arising under Section 6, to the extent necessary for the
Company (or its affiliates, where applicable) to avail itself of the rights and
remedies provided under Section 6.2, shall be submitted to arbitration in New
York, New York in accordance with New York law and the procedures of the
American Arbitration Association. The determination of the arbitrator(s) shall
be conclusive and binding on the Company (or its affiliates, where applicable)
and Executive and judgment may be entered on the arbitrator(s)' award in any
court having jurisdiction.
17
7.4 Notices. Any notice or other communication required or permitted
-------
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission or,
if mailed, five days after the date of deposit in the United States mails as
follows:
(i) If to the Company, to:
MIM Corporation
One Blue Hill Plaza
15th Floor
P.O. Box 1670
Pearl River, New York 10965-8670
Attention: Richard H. Friedman
with a copy to:
Rogers & Wells
200 Park Avenue - Suite 5200
New York, New York 10166-0153
Attention: Richard A. Cirillo
(ii) If to the Executive, to:
Barry A. Posner
105 West 73rd Street
Apartment 6C
New York, New York 10023
Any such person may by notice given in accordance with this Section 7.4 to the
other parties hereto designate another address or person for receipt by such
person of notices hereunder.
7.5 Entire Agreement. This Agreement contains the entire agreement between
----------------
the parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral,
18
with respect thereto.
7.6 Waivers and Amendments. This Agreement may be amended, superseded,
----------------------
canceled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any such right, power or privilege nor
any single or partial exercise of any such right, power or privilege, preclude
any other or further exercise thereof or the exercise of any other such right,
power or privilege.
7.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
7.8 Assignment. This Agreement, and the Executive's rights and obligations
----------
hereunder, may not be assigned by the Executive; any purported assignment by
the Executive in violation hereof shall be null and void. In the event of any
sale, transfer or other disposition of all or substantially all of the
Company's assets or business, whether by merger, consolidation or otherwise,
the Company (without limiting the Executive's rights under Section 5.3) may
assign this Agreement and its rights hereunder.
7.9 Withholding. The Company shall be entitled to withhold from any
-----------
payments or deemed payments any amount of tax withholding required by law.
19
7.10 Binding Effect. This Agreement shall be binding upon and inure to the
--------------
benefit of the parties and their respective successors, permitted assigns,
heirs, executors and legal representatives.
7.11 Counterparts. This Agreement may be executed by the parties hereto in
------------
separate counterparts, each of which when so executed and delivered shall be an
original but all such counterparts together shall constitute one and the same
instrument. Each counterpart may consist of two copies hereof each signed by one
of the parties hereto.
7.12 Survival. Anything contained in this Agreement to the contrary
--------
notwithstanding, the provisions of Sections 6, 7.3 and 7.9, and the other
provisions of this Section 7 (to the extent necessary to effectuate the survival
of Sections 6, 7.3 and 7.9), shall survive termination of this Agreement and any
termination of the Executive's employment hereunder.
7.13 Existing Agreements. Executive represents to the Company that he is
-------------------
not subject or a party to any employment or consulting agreement, non-
competition covenant or other agreement, covenant or understanding which might
prohibit him from executing this Agreement or limit his ability to fulfill his
responsibilities hereunder.
7.14 Headings. The headings in this Agreement are for reference only and
--------
shall not affect the interpretation of this Agreement.
7.15 Parachutes. If all, or any portion, of the payments provided under
----------
this Agreement, either alone or together
20
with other payments and benefits which the Executive receives or is entitled to
receive from the Company or an affiliate, would constitute an excess "parachute
payment" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), the payments and benefits provided under this
Agreement shall be reduced to the extent necessary so that no portion thereof
shall fail to be tax-deductible under Section 280G of the Code.
IN WITNESS WHEREOF, the parties hereto have signed their names as of the
day and year first above written.
/s/ Richard H. Friedman
-----------------------------------
MIM CORPORATION
By: Richard H. Friedman
its Chief Operating Officer
/s/ Barry A. Posner
-----------------------------------
Barry A. Posner
NB142875
21
5
1,000
3-MOS
DEC-31-1997
MAR-31-1997
7939
30645
21052
1667
0
44805
3976
1494
61969
29697
0
0
0
1
30812
61969
70811
70811
66829
66829
3909
579
0
698
0
698
0
0
0
698
.05
.05
