AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 24, 2003
REGISTRATION NO. 333-_____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MIM Corporation
(Exact Name of Registrant as Specified in Its Charter)
Delaware 05-0489664
(State or other jurisdiction 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)
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MIM Corporation 1996 Non-Employee Directors Stock Incentive 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
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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 200,000 $6.795 $1,359,000 $109.95
====================================================================================================================================
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(1) 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.
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INTRODUCTION
This purpose of this registration statement is to register an
additional 200,000 shares of common stock, par value $.0001 per share, of MIM
Corporation that are available for issuance pursuant to an amendment and
restatement of the MIM Corporation 1996 Non-Employee Directors Stock Incentive
Plan and consists only of those items required by General Instruction E to Form
S-8.
PART II
INCORPORATION OF PREVIOUSLY FILED REGISTRATION STATEMENT
The Registrant's Registration Statement on Form S-8, Registration No.
333-33925, filed with the Securities and Exchange Commission on August 19, 1997
is incorporated herein by reference.
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 Company'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 the Company'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 1996 Non-Employee Directors Stock Incentive 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).
23.2 -- Consent of Ernst & Young LLP.
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)
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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
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Louis A. Luzzi, PhD
/s/ Jack L. Salzman Director
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Jack L. Salzman
/s/ Ronald Shelp Director
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Ronald Shelp
MIM CORPORATION
1996 NON-EMPLOYEE DIRECTORS
STOCK INCENTIVE PLAN
As Amended and Restated
Effective April 17, 2002
TABLE OF CONTENTS
Page
SECTION 1 Purpose.......................................................... 1
SECTION 2 Administration................................................... 1
SECTION 3 Eligibility.......................................................2
SECTION 4 Stock.............................................................2
SECTION 5 Granting of Options...............................................3
SECTION 6 Terms and Conditions of Options...................................3
SECTION 7 Option Agreements - Other Provisions..............................6
SECTION 8 Capital Adjustments...............................................6
SECTION 9 Amendment or Discontinuance of the Plan...........................7
SECTION 10 Termination of Plan...............................................8
SECTION 11 Shareholder Approval..............................................8
SECTION 12 Miscellaneous.....................................................8
MIM CORPORATION
1996 NON-EMPLOYEE DIRECTORS
STOCK INCENTIVE PLAN
SECTION 1
Purpose
This amended and restated MIM CORPORATION 1996 NON-EMPLOYEE DIRECTORS
STOCK INCENTIVE PLAN ("Plan") is intended to provide a means whereby MIM
Corporation, a Delaware corporation (the "Company"), may, through the grant of
non-qualified stock options ("Options") to purchase common stock of the Company
("Common Stock") to Non-Employee Directors (as defined in Section 3), attract
and retain capable independent directors and motivate such independent directors
to promote the best interests of the Company and of any Related Corporation.
For purposes of the Plan, a Related Corporation of the Company shall
mean either a corporate subsidiary of the Company, as defined in section 424(f)
of the Internal Revenue Code of 1986, as amended ("Code"), or the corporate
parent of the Company, as defined in section 424(e) of the Code. Further, as
used in the Plan, the term "non-qualified stock option" shall mean an option
which, at the time such option is granted, does not qualify as an incentive
stock option within the meaning of section 422 of the Code.
SECTION 2
Administration
The Plan shall be administered by the Company's Compensation Committee
("Committee"), which shall consist of not less than two (2) directors of the
Company who shall be appointed by, and shall serve at the pleasure of, the
Company's Board of Directors ("Board"). Each member of such Committee, while
serving as such, shall be deemed to be acting in his or her capacity as a
director of the Company. Each member of the Committee who is a "Non-Employee
Director" shall be eligible for the grant of Options under the Plan on the same
basis as any other individual who is a Non-Employee Director, but a member of
the Committee shall abstain from acting in his capacity as a member of the
Committee with respect to any Committee decision affecting any Option which had
been granted to such member over which the Plan gives the Committee any
discretion.
The Committee shall have full authority, subject to the terms of the
Plan, to interpret the Plan, but shall have no discretion with respect to the
selection of Non-Employee Directors to receive Options, the number of shares of
Common Stock subject to the Plan, setting the purchase price for shares of
Common Stock subject to an Option at other than fair market value, the method or
methods for determining the amount of Options to be granted to each Non-Employee
Director, the timing of grants hereunder or with respect to any other matter
which would cause this Plan to fail to comply with Rule 16b-3(c)(2)(ii) under
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the Securities Exchange Act of 1934. Subject to the foregoing, the Committee may
correct any defect, supply any omission and reconcile any inconsistency in this
Plan and in any Option granted hereunder in the manner and to the extent it
shall deem desirable. The Committee also shall have the authority to establish
such rules and regulations, not inconsistent with the provisions of the Plan,
for the proper administration of the Plan, and to amend, modify or rescind any
such rules and regulations, and to make such determinations and interpretations
under, or in connection with, the Plan, as it deems necessary or advisable. All
such rules, regulations, determinations and interpretations shall be binding and
conclusive upon the Company, its shareholders and all Non-Employee Directors
(including former Non-Employee Directors), and upon their respective legal
representatives, beneficiaries, successors and assigns and upon all other
persons claiming under or through any of them.
No member of the Board or the Committee shall be liable for any action
or determination made in good faith with respect to the Plan or any Option
granted under it.
SECTION 3
Eligibility
The persons who shall be eligible to receive Options under the Plan
shall be those directors of the Company (the "Non-Employee Directors") who:
(a) are not employees of the Company or any Related Corporation,
(b have not been employees of the Company or any Related Corporation
during the immediately preceding 12-month period, and
(c) are initially elected to the Board of Directors on or after the
date of the Plan's initial adoption by the Board of Directors (the "Effective
Date").
SECTION 4
Stock
Options may be granted under the Plan to purchase up to a maximum of
five hundred thousand (500,000) shares of Common Stock, par value $ 0.0001 per
share, (which number of shares shall include the three hundred thousand
(300,000) shares of Common Stock reserved for issuance under the Plan prior to
this amendment and restatement of the Plan) subject to adjustment as hereinafter
provided. Shares issuable under the Plan may be authorized but unissued shares
or reacquired shares, and the Company may purchase shares required for this
purpose, from time to time, if it deems such purchase to be advisable.
If any Option granted under the Plan expires or otherwise terminates,
in whole or in part, for any reason whatever (including, without limitation, the
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Non-Employee Director's surrender thereof) without having been exercised, the
shares subject to the unexercised portion of such Option shall continue to be
available for the granting of Options under the Plan as fully as if such shares
had never been subject to an Option.
SECTION 5
Granting of Options
(a) Grant Upon Becoming a Non-Employee Director. An Option to purchase
20,000 shares of Common Stock (as adjusted pursuant to Section 8) automatically
shall be granted (without any further action on the part of the Committee) to
any person on the date he or she first becomes a Non-Employee Director, whether
by reason of his or her election by stockholders or appointment by the Board to
be a director, or, if applicable, the expiration of the 12-month period
specified in Section 3(b) with respect to a present or future director who had
previously been an employee of the Company or any Related Corporation; provided,
that if a Non-Employee Director who previously received a grant of an Option
under this Section 5 terminates service as a director and is subsequently
elected or appointed to the Board again, such director shall not be eligible to
receive a second grant of Options under this Section 5(a) of the Plan.
(b) Annual Grant. An Option to purchase 5,000 shares of Common Stock
(as adjusted pursuant to Section 8) automatically shall be granted (without any
further action on the part of the Committee) to any person who is serving as a
Non-Employee Director on the date of the first annual Board meeting following
the Company's annual shareholders meeting at which this Plan is adopted and who
has served as such for at least six consecutive months as of such date.
Thereafter, on the date of the first annual Board meeting that follows the
Company's annual shareholder meeting during a calendar year, each Non-Employee
Director who is serving as such on such date and who has served as such for more
than six consecutive months automatically shall be granted (without any further
action on the part of the Committee) an Option under the Plan as of such date to
purchase 5,000 shares of Common Stock (as adjusted pursuant to Section 8).
(c) No Other Grants. A Non-Employee Director shall not be eligible to
receive an Option under the Plan except as provided in this Section 5.
SECTION 6
Terms and Conditions of Options
Options granted pursuant to the Plan shall include expressly or by
reference the following terms and conditions:
(a) Number of Shares. A statement of the number of shares to which the
Option pertains.
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(b) Price. A statement of the Option price which shall be determined as
follows:
(1) with respect to any Option granted on or prior to the
effective date of the Company's initial public offering, if any, the
exercise price shall be the initial public offering price set forth on
the cover page of the prospectus included within the registration
statement for such Offering as of the date it is declared effective
with the Securities and Exchange Commission provided that such
offering is declared effective within ninety days after the grant date
of such Option; otherwise, the exercise price shall be the fair market
value of the optioned shares of Common Stock as determined as of the
date of grant in accordance with Section 6(b)(2)(iv) hereinbelow; and
(2) with respect to any Option granted after the effective date
of the Company's initial public offering, if any, the exercise price
shall be the fair market value of the optioned shares of Common Stock,
which shall be:
(i) the mean between the highest and lowest quoted
selling price, if there is a market for the Common Stock on
a registered securities exchange or in an over the counter
market, on the date of grant;
(ii) the weighted average of the means between the
highest and lowest sales on the nearest date before and the
nearest date after the date of grant, if there are no sales
on the date of grant but there are sales on dates within a
reasonable period both before and after the date of grant;
(iii) the mean between the bid and asked prices, as
reported by the National Quotation Bureau on the date of
grant, if actual sales are not available during a reasonable
period beginning before and ending after the date of grant;
or
(iv) if Sections 6(b)(2)(i) through (iii) are
inapplicable, such other method of determining fair market
value as shall be authorized by the Code, or the rules or
regulations thereunder, and adopted by the Committee.
Where the fair market value of the optioned shares of Common Stock is
determined under Section 6(b)(2)(ii) above, the average of the means
between the highest and lowest sales on the nearest date before and
the nearest date after the date of grant is to be weighted inversely
by the respective numbers of trading days between the selling dates
and the date of grant (i.e., the valuation date), in accordance
with Treas. Reg. Section 20.2031-2(b)(1).
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(c) Term. Subject to earlier termination as provided in Section 8
hereof, the term of each Option shall be ten (10) years from the date of grant.
(d) Exercise. Each Option granted under Section 5(a) shall become
initially exercisable in the following amounts and upon the following dates
provided that the Non-Employee Director has served continuously as a director of
the Company from the date of grant to and including each such initial exercise
date: (i) as to 6,667 shares, on the first anniversary date of the date of
grant; (ii) as to an additional 6,667 shares, on the later of (A) the first
anniversary date of the grantee's first election to the Board subsequent to the
date of grant or (B) the second anniversary date of the date of grant; and (iii)
as to the remaining 6,666 shares, on the later of (A) the first anniversary date
of the grantee's second election to the Board subsequent to the date of grant or
(B) the third anniversary date of the date of grant. Each Option granted under
Section 5(b) shall become initially exercisable in the following amounts and
upon the following dates provided that the Non-Employee Director has served
continuously as a director of the Company from the date of grant to and
including each such initial exercise date: (i) as to 1,667 shares, on the first
anniversary date of the date of grant; (ii) as to an additional 1,667 shares, on
the second anniversary date of the date of grant; (iii) as to the remaining
1,666 shares, on the third anniversary date of the date of grant. Any Option
shares, the right to the purchase of which has accrued, may be purchased at any
time up to the expiration or termination of the Option. Exercisable Options may
be exercised, in whole or in part, from time to time by giving written notice of
exercise to the Company at its principal office, specifying the number of shares
to be purchased and accompanied by payment in full of the aggregate price for
such shares. Only full shares shall be issued under the Plan, and any fractional
share which might otherwise be issuable upon exercise of an Option granted
hereunder shall be forfeited.
The Option price shall be payable in cash or its equivalent.
(e) Expiration of Term or Removal of Non-Employee Director as Director.
If a Non-Employee Director's service as a director with the Company terminates
prior to the expiration date of his or her Option for any reason (such as,
without limitation, failure to be re-elected by the stockholders), such Option
may be exercised by the Non-Employee Director, only to the extent of the number
of shares with respect to which the Non-Employee Director could have exercised
it on the date of such termination of service as a director, at any time prior
to the expiration or other termination of the Option as set forth in Section
6(c) hereof.
(f) Non-Transferability. No Option shall be assignable or transferable
by the Non-Employee Director otherwise than by will or by the laws of descent
and distribution, and during the lifetime of the Non-Employee Director, the
Option shall be exercisable only by him or her or, in the case of his or her
legal disability, by his or her guardian or legal representative. If the
Non-Employee Director is married at the time of exercise and if the Non-Employee
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Director so requests at the time of exercise, the certificate or certificates
shall be registered in the name of the Non-Employee Director and the
Non-Employee Director's spouse, jointly, with right of survivorship. In the
event of the Non-Employee Director's death, the Option may be exercised by the
Non-Employee Director's estate, personal representative or beneficiary if, when
and to the extent that the Non-Employee Director would have been so entitled
hereunder but for such death after giving effect to all the provisions hereof
including Section 6(e) hereinabove.
(g) Rights as a Shareholder. A Non-Employee Director shall have no
rights as a shareholder with respect to any shares covered by his or her Option
until the issuance of a stock certificate to him or her for such shares.
(h) Listing and Registration of Shares. Each Option shall be subject to
the requirement that, if at any time the Committee shall determine, in its
discretion, that the listing, registration or qualification of the shares
covered thereby upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such Option
or the purchase of shares thereunder, or that action by the Company or by the
Non-Employee Director should be taken in order to obtain an exemption from any
such requirement, no such Option may be exercised, in whole or in part, unless
and until such listing, registration, qualification, consent, approval, or
action shall have been effected, obtained, or taken under conditions acceptable
to the Committee. Without limiting the generality of the foregoing, each
Non-Employee Director or his or her legal representative or beneficiary may also
be required to give satisfactory assurance that shares purchased upon exercise
of an Option are being purchased for investment and not with a view to
distribution, and certificates representing such shares may be legended
accordingly.
SECTION 7
Option Agreements - Other Provisions
Options granted under the Plan shall be evidenced by written documents
("Option Agreements") in such form as the Committee shall, from time to time,
approve, which Option Agreements shall contain such provisions, not inconsistent
with the provisions of the Plan as the Committee shall deem advisable. Each
Non-Employee Director shall enter into, and be bound by, such Option Agreements.
SECTION 8
Capital Adjustments
The number, kind or class (or any combination thereof) of shares which
may be issued under the Plan, as stated in Section 4 hereof, the number, kind or
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class (or any combination thereof) of shares granted under Section 5, and the
number, kind or class (or any combination thereof) of shares issuable upon
exercise of outstanding Options under the Plan (as well as the Option price per
share under such outstanding Options), shall, subject to the provisions of
section 424(a) of the Code, be adjusted proportionately to reflect any stock
dividend, stock split, share combination, or similar change in the
capitalization of the Company.
In the event of a corporate transaction (as that term is described in
section 424(a) of the Code and the Treasury Regulations issued thereunder as,
for example, a merger, consolidation, acquisition of property or stock,
separation, reorganization, or liquidation), and, provision is not made for the
continuance and assumption of Options under the Plan, or the substitution for
such Options of new Options to acquire securities or other property to be
delivered in connection with the transaction, the Committee shall, upon written
notice to the holders of Options, provide that all unexercised Options will
terminate immediately prior to the consummation of such merger, consolidation,
acquisition, reorganization, liquidation, sale or transfer unless exercised (to
the extent then exercisable) by the holder within a specified number of days
(which shall not be less than seven (7) days) following the date of such notice.
SECTION 9
Amendment or Discontinuance of the Plan
(a) General. The Board from time to time may suspend or discontinue
the Plan or amend it in any respect whatsoever, provided, however, that an
amendment to the Plan shall require shareholder approval (given in the
manner set forth in Section 9(b) below) if such amendment would materially:
(1) increase the benefits accruing to Non-Employee Directors
under the Plan;
(2) increase the number of shares of Common Stock which may be
issued to Non-Employee Directors under the Plan; or
(3) modify the requirements as to eligibility to participate in
the Plan.
The foregoing notwithstanding, no such suspension, discontinuance or
amendment shall materially impair the rights of any holder of an
outstanding Option without the consent of such holder. Further, the
provisions of this Plan establishing the directors eligible to receive
Options under this Plan, the timing of the grants of such Options, the
purchase price for shares subject to Options, the number of Shares covered
by each Option, the method or methods for determining the amount of Options
to be granted to each Non-Employee Director, and any other provision of the
Plan which, if amended more than once every six months, would cause the
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Plan to fail to comply with Rule 16b-3(c)(2)(ii)(B) under the Securities
Exchange Act of 1934, shall not be amended more than once every six months.
(b) Shareholder Approval Requirements. Shareholder approval must be by
either:
(1) the written consent of the holders of a majority of the
outstanding shares of Common Stock complying with the requirements of
the certificate of incorporation and bylaws of the Company and of the
applicable provisions of the Delaware General Corporation Law; or
(2) a majority of the outstanding shares of Common Stock present,
or represented, and entitled to vote at a meeting duly held in
accordance with the requirements of the certificate of incorporation
and bylaws of the Company and of the applicable provisions of the
Delaware General Corporation Law.
SECTION 10
Termination of Plan
Unless earlier terminated as provided in the Plan, the Plan and all authority
granted hereunder shall terminate absolutely at 12:00 midnight on the day
immediately prior to the tenth anniversary of the date of the Plan's adoption by
the Board, and no Options hereunder shall be granted thereafter. Nothing
contained in this Section 10, however, shall terminate or affect the continued
existence of rights created under Options issued hereunder and outstanding on
said Plan termination date, which by their terms extend beyond such date.
SECTION 11
Shareholder Approval
The Effective Date of this Plan shall be the date of the Plan's
adoption by the Board; provided, however, that if the Plan is not approved by
the shareholders in the manner described in Section 9(b), within twelve (12)
months after said date, the Plan and all Options granted hereunder shall be null
and void.
SECTION 12
Miscellaneous
(a) Governing Law. The operation of, and the rights of Non-Employee
Directors under, the Plan, the Option Agreements and any Options granted
hereunder shall be governed by applicable Federal law, and otherwise by the
laws of the State of Delaware.
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(b) Rights. Neither the adoption of the Plan nor any action of the
Board or the Committee shall be deemed to give any individual any right to
be granted an Option, or any other right hereunder, unless and until the
Committee shall have granted such individual an Option, and then his or her
rights shall be only such as are provided by the Option Agreement.
Any Option under the Plan shall not entitle the holder thereof to any
rights as a shareholder of the Company prior to the exercise of such Option
and the issuance of the shares pursuant thereto. Further, any provisions of
the Plan or the Option Agreement with a Non-Employee Director
notwithstanding, the granting of an Option to a Non-Employee Director shall
not entitle that Non-Employee Director to continue to serve as a director
of the Company or a Related Corporation or affect the terms and conditions
of such service.
(c) Indemnification of Board and Committee. Without limiting any other
rights of indemnification which they may have from the Company and any
Related Corporation, the members of the Board and the members of the
Committee shall be indemnified by the Company against all costs and
expenses reasonably incurred by them in connection with any claim, action,
suit, or proceeding to which they or any of them may be a party by reason
of any action taken or failure to act under, or in connection with, the
Plan, or any Option granted thereunder, and against all amounts paid by
them in settlement thereof (provided such settlement is approved by legal
counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such action, suit, or proceeding, except a judgment based
upon a finding of willful misconduct or recklessness on their part. Upon
the making or institution of any such claim, action, suit, or proceeding,
the Board or Committee member shall notify the Company in writing, giving
the Company an opportunity, at its own expense, to handle and defend the
same before such Board or Committee member undertakes to handle it on his
or her own behalf.
(d) Application of Funds. The proceeds received by the Company from
the sale of Common Stock pursuant to Options granted under the Plan shall
be used for general corporate purposes. Any cash received in payment for
shares upon exercise of an Option to purchase Common Stock shall be added
to the general funds of the Company and shall be used for its corporate
purposes.
(e) No Obligation to Exercise Option. The granting of an Option shall
impose no obligation upon a Non-Employee Director to exercise such Option.
* * *
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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
the registration of 200,000 shares of common stock, par value $.0001 per share
(the "Shares"), issuable by the Company pursuant to an amendment and restatement
of the Company's 1996 Non-Employee Directors Stock 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 1996 Non-Employee Directors Stock Incentive Plan of our report dated February 14, 2003 with respect 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