As filed with the Securities and Exchange Commission on August 12, 199824, 2001
Registration No. 333-_____333-64972
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act ofUNDER
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.)
One Blue Hill Plaza
Pearl River,MIM Corporation
100 Clearbrook Road
Elmsford, New York 1096510523
(914) 735-3555460-1600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Richard H. Friedman
Chairman of the Board and
Chief Executive OfficerBarry A. Posner
MIM Corporation
One Blue Hill Plaza
Pearl River,100 Clearbrook Road
Elmsford, New York 1096510523
(914) 735-3555460-1600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies requested to:
Robert E. William Bates, II
King Jr.
Rogers & Wells LLP
200 ParkSpalding
1185 Avenue of the Americas
New York, New York 1016610036
(212) 878-8000556-2100
--------------------------
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement as determined by
market conditions.
----------Statement.
If the only securities being registered on this Formform are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box: |_|box. [ ]
If any of the securities being registered on this Formform are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
----------
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Proposed
Maximum Proposed
Offering Maximum
Title of Each Class of Securities Amount to be Price Aggregate Amount of
to be Registered Registered Per Unit(1) Offering Price(1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.0001......... 2,323,053 shares $4.0938 $9,510,114.37 $2,805.48
================================================================================================================================
(1) Estimated solely[x]
If this Form is filed to register additional securities for the purpose of calculating the registration fee.
Calculatedan
offering pursuant to Rule 457(c) on462(b) under the basisSecurities Act, please check the
following box and list the Securities Act registration statement number of the
averageearlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the high
and low prices in consolidated trading reported onearlier effective registration
statement for the National Associationsame offering. [ ]
If delivery of Security Dealers Automated Quotation Stock Market's National Market on
August 6, 1998.the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
================================================================================
Subject to Completion, Dated August 24, 2001
PROSPECTUS
MIM CORPORATION
---------------------------
1,457,947 Shares of Common Stock
(par value $.0001 per Share)
---------------------------
This prospectus relates to the offering from time to time of up to
1,457,947 shares of common stock of MIM Corporation by Livingston Group LLC.
The common stock is listed on the Nasdaq National Market under the
symbol "MIMS." On August 23, 2001, the last sale price of our common stock as
reported on the Nasdaq National Market was $9.52 per share.
Investing in the common stock involves certain risks. See "Risk
Factors" beginning on page 3 for a discussion of these risks.
The information contained in this Prospectusprospectus is not complete and may be
changed. The Selling Security Holdersselling stockholder may not sell these securities nor may they accept
offers to buy these securities until the
related registration statement which we filed with the Securities and Exchange Commission becomesis
effective. This Prospectusprospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state where suchthe offer or
sale is not permitted.
Subject to completion, dated August 12, 1998
PROSPECTUS
2,323,053 Shares
MIM CORPORATION
Common Stock
-------------------
This Prospectus relates to the 2,323,053 shares of our Common Stock which
the entities and people described under "Selling Security Holders" may offer
from time to time on The Nasdaq Stock Market's National Market ("Nasdaq"), where
our Common Stock is listed for trading under the symbol "MIMS," in other markets
where our Common Stock is traded, in negotiated transactions or in a combination
of such methods of sale. They will sell the Common Stock at prices which are
current when the sales take place or at other prices to which the parties agree.
The respective Selling Security Holders will pay any brokerage fees or
commissions relating to sales by them. See "Method of Sale."
The Selling Security Holders received the shares to which this Prospectus
relates in transactions which were exempt from registration. The registration of
their shares does not necessarily mean that any or all of the Selling Security
Holders will sell their shares. We will not receive any of the proceeds of sales
by the Selling Security Holders.
We are paying the costs of preparing and filing the Registration Statement
of which this Prospectus is a part.
On August 10, 1998, the last reported sale price of the Common Stock on
Nasdaq was $4.00 per share.
See "Risk Factors" beginning on page 4 for a discussion of certain factors
you should consider before you invest in our Common Stock.
- -----------------------------------------------------------------------------------------------------------
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities and they have not
determined ifor passed
upon the accuracy or adequacy of this Prospectus is truthful or complete.prospectus. Any representation to the
contrary is a criminal offense.
- --------------------------------------------------------------------------------
----------------------------------------------
The date of this Prospectusprospectus is ______________, 1998, 2001.
We have not authorized anyone to give any information or to make any
representation which is not contained in this Prospectus or in a document
incorporated by reference into this Prospectus. If anyone gives any information
or makes any representation which is not contained in, or incorporated into,
this Prospectus, you must not rely upon it as having been authorized by us or by
anyone acting on our behalf. This Prospectus is not an offer to sell, or a
solicitation of an offer to buy, our securities by any person in any
jurisdiction in which it is unlawful for that person to make such an offer or
solicitation. No matter when you receive this Prospectus or purchase securities
to which it relates, you must not assume it is correct at any time after its
date.
-----------------------
TABLE OF CONTENTS
Page
----
WHERE YOU CAN FIND MORE INFORMATION ....................................... 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE ........................... 3
FORWARD-LOOKING INFORMATION ............................................... 3MIM Corporation..............................................................1
Risk Factors.................................................................1
Special Note Regarding Forward-Looking Statements............................7
Use of Proceeds..............................................................7
Selling Stockholder..........................................................8
Plan of Distribution.........................................................8
Validity of Common Stock....................................................10
Experts ....................................................................10
About this Prospectus.......................................................10
Where You Can Find More Information.........................................11
i
MIM CORPORATION
We provide integrated pharmacy benefit management services, which we
refer to as PBM services, to our client groups, including managed care
organizations, insurance carriers, unions, government agencies, employers, third
party administrators and other funded plan sponsors. We perform these PBM
services using clinically sound guidelines to ensure cost control and quality
care for our clients. Our comprehensive PBM services include the delivery of
pharmaceutical products through our network of retail pharmacies or our
distribution facilities, pharmacy claims processing, benefit design
consultation, drug utilization review, formulary management, drug data analysis
and rebate administration. We also offer our PBM clients the opportunity to
utilize additional innovative PBM services, including our Bioscrip disease
management services and our online pharmacy. Under our Bioscrip programs, we
provide for the cost effective delivery of expensive specialty medications,
including infusion and injectable pharmaceuticals, to patients who are afflicted
with life threatening diseases and genetic impairments. Our online pharmacy,
www.MIMRx.com, develops private label websites for clients to allow their
members to order prescriptions and access innovative and customized health
information services and products on the Internet.
We are incorporated under the laws of the State of Delaware. Our
principal executive offices are located at 100 Clearbrook Road, Elmsford, New
York 10523, and our telephone number is (914) 460-1600.
RISK FACTORS
.............................................................. 4
THE COMPANY ............................................................... 9
USE OF PROCEEDS ........................................................... 9
SELLING SECURITY HOLDERS .................................................. 9
METHOD OF SALE ............................................................ 10
DESCRIPTION OF CAPITAL STOCK .............................................. 11
LEGAL MATTERS ............................................................. 12
EXPERTS ................................................................... 12
-----------------------
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance with those
requirements, we file annual, quarterly and special reports, proxy statements
and other information with the Securities and Exchange Commission (the
"Commission"). You may read and copy those reports and proxy statements and any
other information we file with the Commission at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Regional Offices of the Commission
located at 7 World Trade Center, New York, New York 10048 and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. You may also
obtain copies of that information from the Commission's Public Reference Section
at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Please
call the Commission at 1-800- SEC-0330 for further information on the public
reference rooms. The Commission maintains a web site that contains reports,
proxy and information statements and other information regarding registrants,
including MIM
2
Corporation, that file electronically with it. You may access the Commission's
web site at "http://www.sec.gov". Our Common Stock is listed for trading on
Nasdaq. You may also read any such reports, proxy statements and other
information filed or to be filed by us at the offices of the National
Association of Securities Dealers, Inc., Market Listing Section, 1735 K Street,
N.W., Washington, D.C. 20006.
We have filed with the Commission a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus is a part of the Registration Statement. This
Prospectus does not contain all the information contained in the Registration
Statement because we have omitted certain parts of the Registration Statement in
accordance with the rules and regulations of the Commission. For further
information, we refer you to the Registration Statement, which you may read and
copy at, or obtain from, the Commission or Nasdaq in the manner described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We incorporate by reference into this Prospectusshould carefully consider the following documents
which we previously filed with the Commission under the File Number 1-11993.
(a) Our Annual Report on Form 10-K for the fiscal year ended December
31, 1997, as amended on Form 10-K/A filed on April 30, 1998factors and Form 10-K/A
filed on August 5, 1998.
(b) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1998, as amended on Form 10-Q/A filed on August 5, 1998 and Form
10-Q/A filed on August 6, 1998.
(c) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 1998.
(d) All other reports we have filed pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act since December 31, 1997.
When we file documents in accordance with Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act between the date of this Prospectus and the time we
file a post-effective amendment to the Registration Statement reporting that all
the securities which are the subject of the Registration Statement have been
sold or deregistering any securities which have not been sold, those documents
we file will be incorporated into this Prospectus and will be a part of it
beginning on the date those documents are filed. If any document which we file
changes anything said in this Prospectus or in an earlier document which is
incorporated into this Prospectus, the later document will modify or supersede
what is said in this Prospectus or the earlier document.
We will provide, without charge, at the written or oral request of anyone
to whom this Prospectus is delivered, copies of the documents incorporated by
reference in this Prospectus, other than exhibits to those documents which are
not specifically incorporated by reference. Requests should be directed to: MIM
Corporation, One Blue Hill Plaza, Pearl River, New York 10965, Attention:
Corporate Secretary (Telephone: (914) 735-3555, ext. 2229).
FORWARD-LOOKING INFORMATION
Certain information both included and incorporated by reference in this
Prospectus may contain forward-looking statements within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act, and as such may
involve known and unknown risks, uncertainties and other factors which may cause
the actual results, performance or achievements of our company to be materially
different from the results, performance or achievements expressed or implied by
such forward-looking statements. Forward-looking statements, which are based on
certain assumptions and describe our future plans, strategies and expectations
3
are generally identifiable by use of the words "may," "will," "should,"
"expect," "anticipate," estimate," "believe," "intend" or "project" or the
negative thereof or other variations thereon or comparable terminology. Factors
which could have a material adverse effect on the operations and future
prospects of our company include, but are not limited to, changes in: economic
conditions generally and the pharmaceutical market specifically,
legislative/regulatory changes, availability of capital, interest rates,
competition, supply and demand for our services and general accounting
principles, policies and guidelines applicable to our company. You are cautioned
that any forward-looking statements are not guarantees of future performance and
involve risks and uncertainties. These risks and uncertainties should be
considered in evaluating any forward-looking statements contained or
incorporated by reference herein. We do not undertake any obligations to
publicly release the results of any revisions to these forward-looking
statements that may be made to reflect any future events and circumstances.
RISK FACTORS
Before you invest in shares of our Common Stock, you should be aware that
there are various risks, including those described below. You should consider
carefully these risk factors together with all of the other
information included or incorporated by reference in this Prospectusprospectus before
you decidedeciding to purchaseinvest in shares of common stock.
Some of our Common Stock. This section includes or refers to certain
forward-looking statements; you should refer to the explanation of the
qualifications and limitations on such forward-looking statements discussed
above.
Dependence on RxCare Relationship
RxCare of Tennessee, Inc. ("RxCare"), a pharmacy services administrative
organization owned by the Tennessee Pharmacists Association and representing
approximately 1,600 retail pharmacies, initially retained us in 1993 to assist
in obtaining health plan pharmaceutical benefit business for Tennessee
pharmacies and related services, including pharmacy benefit design and pricing.
In January 1994, the State of Tennessee instituted its TennCare(TM) state health
program ("TennCare") by contracting with plan sponsors to provide mandated
health services to Medicaid eligible Tennessee residentscompetitors may distribute pharmaceuticals on a capitated basis.
In turn, certain of these plan sponsors contracted with RxCare to provide
TennCare-mandated pharmaceutical benefits to their TennCare beneficiaries
through RxCare's network of retail pharmacies, in most cases on a corresponding
capitated basis. Over time, substantially all of these contracts have been
restructured or renewed under fee-for-service pricing arrangements.
Since January 1994, we have been providing a broad range of pharmacy
benefit management services with respect to RxCare's TennCaremore
cost-effective basis and private
pharmaceutical benefit businesses under an agreement with RxCare formalized in
March 1994 and thereafter amended (the "RxCare Contract"). We assist RxCare in
designing and marketing its pharmacy benefit management services, and perform
essentially all of RxCare's obligations under its pharmacy benefit contracts
with health plan sponsors, pay certain amounts to RxCare and are compensated by
sharing with RxCare in the profit, if any, from activities under RxCare's
contracts with the sponsors.
As of December 31, 1997, we had contracts to service eight TennCare
sponsors with 1.2 million members under the RxCare Contract. RxCare's contracts
with Tennessee Primary Care Network, Inc., Tennessee Health Partnership,
Tennessee Behavioral Health, Inc. and Blue Cross and Blue Shield of Tennessee
("BCBS-TN") accounted for approximately 21%, 13%, 10% and 10%, respectively,take away some of our revenues in 1997. While we believe that each of these contracts will be
renewed, we cannot assure you that all or any one of these contracts will be
renewed at all or on terms as favorable as those currently in effect. The
failure to so renew all or any of these contracts on terms at least as favorable
as those currently in effect could have a material adverse effect on ourmarket share. We face substantial
competition within the traditional PBM industry, the mail order pharmacy
business and results of operations.
4
the specialty pharmaceutical product area. The RxCare Contract expires on December 31, 1998. In total, this contract
accounted for 84% of our revenues in 1997. Failure to renew this contract in
total or on terms as favorable as those currently in effect could have a
material adverse affect on our business and results of operations. The BCBS - TN
risk-based contract was canceled effective March 31, 1997 and replaced with a
non-risk (fee-for-service) clinical services agreement between us and a BCBS -
TN affiliate.
Limited Term of Material Agreements
The RxCare Contract is scheduled to expire December 31, 1998 unless renewed
in accordance with its terms. RxCare's contracts with plan sponsors typically
have a one-year term and are subject to automatic renewal unless notice of
termination is given. Those contracts are subject to earlier termination upon
the occurrence of certain events, including a breach of the agreement which is
not cured within 30 days of notice, insolvency or termination of the TennCare
program or of a plan sponsor's contract with the State of Tennessee. RxCare's
contracts with Tennessee Primary Care Network, Inc., Tennessee Health
Partnership, Tennessee Behavioral Health, Inc. and BCBS - TN accounted for
approximately 21%, 13%, 10% and 10%, respectively, of our revenues in 1997. We
cannot guarantee that any of the foregoing contracts or the RxCare Contract will
be continued or renewed in accordance with their respective terms. The loss of
any of such contracts would have a material adverse effect on our business and
results of operations.
We Have Had Historical Accounting Losses; We May Experience Future Losses
We had losses of approximately $13.5 million, $31.8 million, $6.8 million
and $2.5 million in the years ended December 31, 1997, 1996, 1995 and 1994,
respectively. These historical results are not indicative of future results, but
we cannot assure you that we will not incur net losses in the future.
Competition
The pharmacy benefit management business is highly competitive, and many of
our current and potential competitors have considerably greater financial,
technical, marketing and other resources. The pharmacy benefit management
businessPBM industry
includes a number of large, well capitalizedwell-capitalized companies with nationwide
operations, such as AdvancePCS, Express Scripts, Caremark Rx, Merck-Medco,
WellPoint Pharmacy Management and MedImpact Healthcare Systems and many smaller
organizations typically operating on a local or regional basis. Some of the larger organizations are owned by or otherwise
related to aour
competitors have affiliations with brand name drug manufacturermanufacturers or retail
pharmacy chains and may have significant influence onbe better positioned with respect to the cost effective
distribution of pharmaceuticals. Numerous insuranceOur predecessor began PBM operations in 1993,
whereas some of our primary competitors have been in the PBM industry for much
longer and Blue Crosshave a relatively larger portion of the market share. If we are
unable to grow or, at a minimum retain, our relatively small market share, our
ability to cross sell our specialty pharmacy services to our PBM clients could
be limited.
We also compete with several national and Blue
Shield plans,regional companies that
have substantial financial resources and primarily provide specialty
pharmaceutical services to the chronically ill and genetically impaired, such as
Accredo Health, Chronimed, Gentiva Health and Priority Healthcare. We began to
offer specialty pharmaceutical programs in August 2000 with our acquisition of
American Disease Management Associates, LLC. Although we have experienced
substantial growth in the specialty pharmaceutical service area of our business,
1
most of our competitors have been in the business of delivering specialty
pharmaceutical services considerably longer than we have and have secured
long-term supply or distribution arrangements for prescription pharmaceuticals
necessary to treat certain chronic disease states on price terms substantially
more favorable than the terms currently available to us. As a result of such
advantageous pricing, we may be unable to compete with these companies on
particular prescription products or in particular disease states.
Any change in our relationship with managed care organizations
providing health and retail drug chains also have their
own pharmacy benefit management capabilities.
Dependence on Key Management
Our success is largely dependent on the services of Richard H. Friedman,prescription benefits under Tennessee's state health
program could reduce our Chief Executive Officer, and, toprofitability. Historically, a lesser extent, other key management
personnel. We have an employment agreement with Mr. Friedman which provides for
his continued employment. However, we cannot assure you that we will be able to
retain his services or the services of any other key management personnel. The
loss of the services of one or moremajority of our senior management couldrevenues
have been derived from providing PBM services in the state of Tennessee to
managed care organizations, or MCOs, participating in Tennessee's TennCare(R)
program. The TennCare(R) program operates under a demonstration waiver from the
United States Health Care Financing Agency, which is due to expire on December
31, 2001. We provide our ongoing service to those MCOs under this demonstration
waiver program. If the waiver is not renewed, or we are not chosen to continue
to provide pharmacy benefits to enrollees of a successor program, then the
failure to provide such services would have a material adverse effect upon our business, operating results and financial
condition.
Risk of Managing Growth
Since we went public in August of 1996, we have been attempting to grow at
a rapid pace. Rapid growth may strainon our
financial resources. Our abilityposition and results of operations.
Increases in the price of pharmaceuticals may reduce our revenues.
Under capitated arrangements, we are responsible for increases in prescription
costs, which adversely affects our gross profits. In such instances, we may be
required to manage growth effectively will require thatincrease capitated contract rates on new contracts and upon renewal
of existing capitated contracts. However, we continue to hire, train and
manage additional employees. We cannot assure you that we willmay not be able to continue to expand ourobtain these
rate increases because of market presence in current locations or successfully
enter other markets.conditions at the time of such price increases.
If we are unable to manage our growth effectively,lose relationships with one or more key pharmaceutical
manufacturers or if the payments we receive from pharmaceutical manufacturers
decline, our business, profitability and resultsgrowth prospects could suffer. We have
contractual relationships with numerous pharmaceutical manufacturers that pay us
rebate payments based on use of operationsselected drugs by health plan members, as well
as fees for other programs and services. We believe our business, profitability
and growth prospects could be adversely affected.
5
Risk Associatedsuffer if:
o we lose relationships with Expansion
Our current strategy contemplates the continued growth ofone or more key pharmaceutical
manufacturers;
o rebates decline due to our company
through mergers and acquisitions offailure to meet market share or other
companies and business entities which
engage in pharmaceutical benefit management services. However, any business
acquisition involves inherent uncertainties, such as the effectthresholds;
o legal restrictions are imposed on the acquiredability of pharmaceutical
manufacturers to offer formulary rebates or purchase our programs or
services; or
o pharmaceutical manufacturers choose not to offer formulary rebates or
purchase our programs or services.
If we lose pharmacy network affiliations, our business,
of integration into a larger organizationprofitability and the availability of
management resources to oversee the operationgrowth prospects could suffer. Our contracts with retail
pharmacies, which are non-exclusive, are generally terminable by either party on
short notice. If one or more of the acquired business.
Potential obstaclestop pharmacy chains elects to the successful integrationterminate its
relationship with us or if we are only able to continue our relationship on
terms less favorable to us, our members' access to retail pharmacies and our
business could suffer. In addition, some large retail pharmacy chains either own
or have strategic alliances with PBMs or could attempt to acquire or enter into
2
these kinds of the acquired business
include, among others, consolidating financial, accounting and managerial
functions and eliminating operational overlaps between our businesses, and
adding and integrating key personnel. Even though the acquired businesses may
have been successful as independent companies prior to the merger or
acquisition, we cannot assure you that their success will continue after the
merger or acquisition.
Significant Control by Management and Significant Stockholders
As of July 30, 1998, our current executive officers and directors owned
approximately 42.6% of our outstanding Common Stock. Giving effect to the
issuance of 3,912,448 shares of Common Stockrelationships with PBMs in the mergerfuture. Ownership of, or alliances
with, Continental
Managed Pharmacy Services, Inc., scheduledPBMs by retail pharmacy chains could reduce the number of retail pharmacy
chains available to be consummatedour members and cause our members to migrate to PBMs with
greater access to retail pharmacy chains.
We are subject to heightened federal regulatory scrutiny, which
could result in August 1998,sanctions or penalties. As a participant in the healthcare
industry, our operations and due to a scheduled change in management, our executive officers and directors
will own approximately 11.5% (assuming no sales of shares by such persons
subsequent to such date) after the merger. Together, after the merger, our
executive officers and directors will have the power to influence the outcome of
virtually all corporate actions requiring stockholder approval, including the
election of directors. In addition, after the merger, John H. Klein (formerly
Chief Executive Officer and Chairman of the Board of Directors) and E. David
Corvese (formerly Vice Chairman of the Board of Directors) will beneficially own
20.2% and 16.0%, respectively, of our outstanding Common Stock (assuming no
sales of shares by such persons subsequent to such date). As such, each,
independently or together, will have the power to influence the outcome of
virtually all corporate actions requiring stockholder approval, including the
election of directors.
Government Regulation
Our current and planned businessesrelationships are subject to extensive federal and
state laws and regulations.regulations and enforcement by federal and state governmental
agencies. There are significant uncertainties regarding the application of many
of these legal requirements to our business, and we cannot provide any assurance
that a regulatory agency charged with enforcement of any of these laws or
regulations will not interpret them differently or, if there is an enforcement
action brought against us, that our interpretation would prevail. In addition,
there are numerous proposed health care laws and regulations at the federal and
state levels, many of which could materially affect our ability to conduct our
business or adversely affect our results of operations. We are unable to predict
what additional federal or state legislation or regulatory initiatives may be
enacted in the future relating to our business or the health care industry in
general, or what effect any such legislation or regulations might have on us.
In the second quarter of 2000, we entered into a global settlement
agreement with the Office of Inspector General or OIG, within the U.S.
Department of Health and Human Services or HHS and the State of Tennessee
relating to certain civil and criminal charges against former officers of our
predecessor. We did not admit any wrongdoing in the global settlement agreement
but agreed to enter into a corporate integrity agreement in order to ensure our
ongoing compliance with the requirements of Medicare, Medicaid and all other
Federal health care programs. Under the terms of this agreement, we are required
to, among other things, implement a corporate compliance program, conduct
ongoing educational programs to inform employees regarding compliance with
relevant laws and regulations and institute a formal reporting procedure to
disclose possible violations to the OIG. In addition to these requirements, we
must submit annual reports with respect to the status of our compliance
activities. Although compliance with the corporate integrity agreement is
designed to reduce the risk of violations of laws and regulations relevant to
our business, we are required to report any such potential violations to the OIG
and the U.S. Department of Justice. Any actual violations could result in
sanctions or penalties, including exclusion from participation in the Medicare
or Medicaid programs.
Subject to certain statutory and regulatory exceptions federal(including
exceptions relating to certain managed care, discount, group purchasing and
personal services arrangements), Federal law (the
"Federal Anti-Kickback Statute") prohibits the payment or receipt of
any
remuneration directly or indirectly, to induce, arrange for or recommend the purchase of health care
items or services paid for in whole or in part by Medicare or state health care
programs (including Medicaid and TennCare)programs or Medicaid waiver programs, such as
TennCare(R)). In
addition, certainCertain state laws (including professional licensing laws prohibiting
fee-splitting) contain similar provisions that may extend the prohibition to
cover items or services
that are paid for by private insurance and self-pay patients. Our arrangements
with RxCare of Tennessee, Inc., a pharmacy services administrative organization
owned by the Tennessee Pharmacists Association, and other pharmacy network
administrators, drug manufacturers, marketing agents, brokers, health plan
sponsors, pharmacies and others parties routinely involve payments to or from
persons who provide or purchase, or recommend or arrange for the purchase of,
3
items or services paid in part by the TennCare(R) program or by other programs
covered by such laws. We cannot assure youcarefully consider the importance of such
"anti-kickback" laws when structuring our operations, and believe that our practiceswe are in
compliance with such laws. Violation of the Federal anti-kickback statute could
subject us to criminal and/or civil penalties, including exclusion from Medicare
and Medicaid (including TennCare(R)) programs or state-funded programs in the
case of state enforcement.
The federal anti-kickback law has been interpreted broadly by
courts, the OIG and administrative bodies. Because of the federal statutes,
broad scope, federal regulations establish certain safe harbors from liability.
Safe harbors exist for certain properly reported discounts received from
vendors, certain investment interest, and certain properly disclosed payments
made by vendors to group purchasing organizations, as well as for other
transactions or relationships. In late 1999, HHS adopted final rules revising
the discount safe harbor to protect certain rebates. Because this revision is
fairly recent, the guidance on how the safe harbor revision will be found to be protected
by certain so-called "safe harbor" regulations, which provide insulation from
prosecution under the Federal Anti-Kickback Statute, and in some instances itinterpreted
is clearnot fully developed. Nonetheless, a practice that they aredoes not so protected. We are also subject to various false
claim, drug distribution, antitrust and consumer protection laws andfall within a safe
harbor is not necessarily unlawful, but may be subject to scrutiny and
challenge. In the absence of an applicable exception or safe harbor, a violation
of the statute may occur even if only one purpose of a payment arrangement is to
induce patient referrals or purchases. Among the practices that have been
identified by the OIG as potentially improper under the statute are certain
"product conversion programs" in which benefits are given by drug manufacturers
to pharmacists or physicians for changing a prescription (or recommending or
requesting such a change) from one drug to another. Anti-kickback laws have been
cited as a partial basis, along with state consumer protection laws, for
investigations and multi-state settlements relating to financial incentives
provided by drug manufacturers to retail pharmacies in connection with such
programs.
Certain governmental entities have commenced investigations of PBM
companies and other laws, includingcompanies having dealings with the PBM industry and have
identified issues concerning selection of drug formularies, therapeutic
substitution programs and discounts or rebates from prescription drug
manufacturers. Additionally, at least one state has filed a lawsuit concerning
similar issues against a health plan. To date, we have not been the subject of
any such investigation or suit and have not received subpoenas or been requested
to produce documents for any such investigation or suit. However, we may, in the
future, receive subpoenas or be requested to produce documents in pending
investigations or litigations in the future.
Pending and future litigation could materially affect our
relationships with pharmaceutical manufacturers or subject us to significant
monetary damages. Since 1993, retail pharmacies have filed over 100 separate
lawsuits against pharmaceutical manufacturers, wholesalers and certain PBMs,
challenging brand name drug pricing practices under various state insuranceand federal
antitrust laws. While management believesThe plaintiffs alleged, among other things, that the
manufacturers had offered, and certain PBMs had knowingly accepted, discounts
and rebates on purchases of brand name prescription drugs that in violation of
federal laws that generally prohibit the granting of discounts, rebates,
allowances or advertising service charges to certain purchasers in order to
destroy competition or eliminate a competitor. Some manufacturers settled
certain of these actions, including a case brought on behalf of a nationwide
class of retail pharmacies. The class action settlements generally provided for
commitments by the manufacturers in their discounting practices to retail
pharmacies. The defendants who did not settle won the class action on a directed
4
verdict. With respect to the cases filed by plaintiffs who opted out of the
class action, some drug manufacturers have settled certain of these actions, but
such settlements are not part of the public record. Some of these cases are
still pending.
Although we are in material compliance with all
existing laws and regulations materialnot currently a party to the operation of our business, many of
the laws and regulations affecting us are uncertain in their application and are
subject to interpretation and change. Laws regulating health care businesses,
and interpretations thereof, are undergoing rapid change. As controversies
continue to arise in this area, for example, regarding the efforts of plan
sponsors and pharmacy benefit managers to limit formularies, alter drug choice
and establish limited networks of participating pharmacies, we expect federal
and state regulation and enforcement priorities in this area to increase, the
impact of which we cannot currently predict. It is possible that we will be
subject to scrutiny or challenge under one or moreany of these laws. Anyproceedings,
we may, in the future, be made a party to similar lawsuits. An adverse decision
in any such challenge, whether or not successful,lawsuit could have a material adverse effect upon
our business and results of operations. Violation
6
of the Federal Anti-Kickback Statute, for example, may result in criminal
penalties, as well as exclusion from the Medicare and Medicaid (including
TennCare) programs. Further, it is possible that we will not be able to obtain
or maintain any of the regulatory approvals that may be required to operate our
business, and the failure to do so coulda substantial monetary judgment being
rendered against us, which would have a material adverse effect on our business
and resultscould lead to a decrease in our stock price.
Existing patient privacy laws could subject us to monetary fines and
criminal sanctions. In December 2000, HHS issued final regulations regarding the
privacy of operations.
In general,individually-identifiable health information pursuant to the Health
Insurance Portability and Accountability Act of 1996, or HIPAA. This final rule
on privacy applies to a health care patient's medical information that could be
used to identify the individual identity of the patient. We refer to this
information as protected health information. The final rule mandates the
protection of protected health information in any format, including both
electronic and paper records and imposes extensive requirements on the way in
which health care providers such as us, health plan sponsors and their business
associates use and disclose protected health information. The final rule gives
patients significant rights to understand and control how their protected health
information is used and disclosed. Organizations subject to the rule will have
until April 14, 2003 comply with its provisions and implement appropriate
policies and procedures to safeguard protected health information. HIPAA will
likely increase our mail service pharmacy operationsburden and dispensing facilities
are regulated by the lawscosts of Ohio that impose certain license requirementsregulatory compliance with respect to
our health improvement programs and other information-based products, alter our
reporting to certain health plan sponsors and may reduce the amount of
information we may use if patients do not consent to such use. Sanctions for
failing to comply with standards issued pursuant to HIPAA include possible jail
time, criminal penalties of up to $250,000 and civil fines of up to $25,000. In
addition, HHS has proposed, but not yet finalized, regulations pursuant to HIPAA
that govern the security of individually-identifiable health information.
We have anti-takeover provisions that could delay or prevent a
change in control, even if it would benefit stockholders. We have adopted
anti-takeover provisions that could delay or prevent a third party from gaining
control of us in a transaction that our board of directors has not negotiated
and approved, even if such change in control would be beneficial to our
stockholders. These anti-takeover provisions could depress the market price of
our common stock. These anti-takeover provisions include:
o change in control provisions in employment agreements with various
executive officers;
o restrictions on who may call a special meeting of stockholders; and
o a stockholders' rights plan.
The trading price of our common stock is volatile. The trading price
of our common stock could be subject to wide fluctuations in response to
quarter-to-quarter variations in our operating results, government regulatory
5
action, general conditions in the pharmaceutical industry, increased price
competition, changes in earnings estimates by analysts or other events or
factors, many of which are beyond our control. In addition, the stock market has
experienced extreme price and volume fluctuations.
6
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus may include or incorporate by reference
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, including statements regarding our expectations, hopes, beliefs,
intentions or strategies regarding the future. These statements may be included
in the information incorporated by reference above under "Where You Can Find
More Information." Forward looking statements may include statements relating
toto:
o our business development activities;
o sales and marketing efforts;
o the operationstatus of pharmacies.material contractual arrangements including the
negotiation or re-negotiation of such arrangements;
o future capital expenditures;
o the effects of regulation and competition on our business and future
operating performance;
o the results, benefits and risks associated with integration of
acquired companies; and
o the likely outcome and the effect of legal proceedings on our business
and operations and/or the resolution or settlement thereof.
Investors are cautioned that any such forward looking statements are
not guarantees of future performance and involve risks and uncertainties, and
that actual results may differ materially from those possible results discussed
in the forward looking statements as a result of various factors. These laws are
administered by the Ohio Board of Pharmacy, which is empowered to impose
sanctions, including license suspension or revocation for noncompliance. The
lawsfactors
include, among other things, provisions requiring pharmaciesrisks associated with risk-based or "capitated"
contracts, increased government regulation related to the health care and pharmacists to be licensed, as well as provisions specifying who may writehealth
insurance industries in general and dispense prescriptions, how prescriptions must be filled, what records must be
maintained and when generic drugs may be substituted. While we believe that we
are in substantial compliance with these laws, manymore specifically, pharmacy benefit
management organizations, the existence of thecomplex laws and regulations affecting usrelating
to our business, increased competition from our competitors, including
competitors with greater financial, technical, marketing and other resources.
Consequently, you should regard forward-looking statements only as
our current plans, estimates and beliefs. We do not promise to notify you if we
learn that our assumptions or projections are uncertainwrong for any reason. Before you
decide to invest in their application and are subjectshares of common stock you should be aware that the factors
we discuss in the "Risk Factors" section in this prospectus could cause our
actual results to interpretation and change.
Most other states into whichdiffer from what we mail pharmaceuticals also have laws
governingstated in any forward-looking
statements.
USE OF PROCEEDS
The selling stockholder will receive all net proceeds from the operation of pharmacies and the dispensing of prescription drugs.
In many cases, these laws include provisions which regulate out-of-state mail
service pharmacies that mail drugs into the state. The regulations are
administered by a state regulatory body (typically, a pharmacy board) which is
empowered to impose sanctions, which may include license suspension or
revocation for noncompliance. In those states where they exist, state laws
regulating out-of-state pharmacies essentially are disclosure laws. Disclosure
laws generally require that out-of-state pharmacies register with the local
board of pharmacy, follow certain procedures and make certain disclosures, but
generally permit the mail order pharmacy to operate in accordance with the lawssale
of the state in which the pharmacy operations are located. We believe that we
are in material compliance with all of these disclosure laws. To date, there
have been no formal administrative or judicial efforts to enforce any such laws
against us.
In addition to the above-described laws and regulations, there are federal
statutes and regulations which establish standards for all pharmacies concerning
the labeling, packaging, advertising and adulteration of prescription drugs and
the dispensing of "controlled" substances and prescription drugs. Federal Trade
Commission and United States Postal Service regulations require mail order
sellers to engage in truthful advertising, to stock a reasonable supply of
drugs, fill mail orders within thirty (30) days and, if impossible, to inform
the consumer of his or her right to a refund. We believe that we are in
substantial compliance with all such requirements.
Risk-Based ("Capitated") Agreements
Approximately 53% of our revenue during 1997 and approximately 37% of our
revenue for the first half of 1998 was derived from agreements through which we
receive a pre-determined fee each month for each member enrolled in a particular
health plan in return for providing certain covered pharmacy services to plan
members; these agreements are known as "capitated" agreements. We generally
negotiate the capitation fee for a particular plan (or subset of individuals
within a plan) based upon a number of factors, including competitive conditions
within a particular market and the expected costs of providing the covered
pharmacy services. Expected costs are generally based on prior experience with
similar groups and demographic data based on the population at large. Data with
respect to prior experience may not be available and, if available, may not be a
reliable indicator of the actual results for a particular plan. The cost of
providing pharmacy services varies among plan participants and groups and is
affected by many factors, including formulary design and compliance, generic
substitution rate, drug utilization by persons covered under such arrangements,
the effect of inflation on drug costs and the co-payment structure. During the
early stages of a contract, the cost of providing pharmacy services typically
exceeds the capitation fee, primarily due to the lag between the commencement of
the contract and the full implementation of the formulary and our other cost and
clinical management containment measures. We cannot assure you that the cost of
providing pharmacy services will not exceed the capitation fee, either per
member or per plan, throughout the entire contract term.
7
Professional Liability Risk
The services provided by us may subject us to litigation and liability for
damages. We believe that our insurance protection is adequate for our present
and contemplated business operations. However, we cannot assure you that we will
be able to obtain and maintain insurance coverage in the future or that such
insurance coverage will be available on acceptable terms or will be adequate to
cover any or all potential professional liability, product liability or other
claims. A successful claim in excess of our insurance coverage could have a
material adverse effect on our business and results of operations.
Dependence on Information Systems
We believe that our on-line claims processing (or adjudication) systems are
an integral part of our business. We own our claims processing software and have
an agreement to acquire all software upgrades to such software to ensure that we
maintain a state-of-the-art claims processing system. Any significant
interruption in service of our computer or telephone systems could adversely
affect our ability to operate our business on a timely basis, and could
adversely affect our relations with pharmacies and health plan sponsors. Under a
contract with a third party, the third party guarantees that any disruption in
our computer or telephone systems will be rectified within 48 hours of us
notifying the third party. Although no assurance can be given, we believe that
this disaster recovery arrangement is sufficient to prevent any disruption from
having a material adverse effect on our business, financial condition or
long-term operations.
Effect of Certain Legal Proceedings
On March 5, 1996, Pro-Mark Holdings, Inc., our wholly-owned subsidiary, was
added as a third-party defendant in a proceeding in the Superior Court of the
State of Rhode Island, and on September 16, 1996 the third-party complaint was
amended to add MIM Corporation as a third-party defendant. The third-party
plaintiffs, Medical Marketing Group, Inc. ("MMG"), PPI Holding, Inc. ("PPI
Holding") and Payer Prescribing Information, Inc. ("PPI"), allege in the amended
third-party complaint: (i) that we employed E. David Corvese (our former Vice
Chairman) with knowledge of covenants not to compete in effect between Mr.
Corvese and PPI, PPI Holding and MMG that prevented Mr. Corvese from competing
in the area of the collection, analysis or marketing of data for the
pharmaceutical or health care industries relating to physician practice
demographics and the influence of managed care plans; (ii) that Mr. Corvese
breached his employment agreement with PPI and his fiduciary duties to PPI by
not devoting his full business time and attention to PPI from June 1993 through
November 1993 (when his employment was terminated by PPI), and (iii) that we
interfered with the contractual relationship between the parties and
misappropriated MMG's and PPI's confidential information through our employment
of Mr. Corvese. The amended third-party complaint seeks to enjoin us from using
confidential information allegedly misappropriated from MMG and PPI and seeks an
unspecified amount of compensatory and consequential damages, interest and
attorneys' fees. We believe that the third-party plaintiff's allegations are
without merit; however, loss of this litigation could have a material adverse
effect on our business and results of operations.
Possible Negative Effects of Preferred Stock
We are authorized to issue 5,000,000 shares of preferredcommon stock. Our Board
of Directors may from time to time fix the designation, rights and preferences
of preferred stock (including voting, dividend, redemption and liquidation
rights) without further stockholder action. Shares of preferred stock could be
issued in the future with rights and preferences that could make the possible
takeover of us or the removal of our management more difficult or could
otherwise adversely impact the rights of holders of our Common Stock.
8
No Intention to Pay Dividends
We presently intend to retain all earnings, if any, to support the
operation and expansion of our business and do not anticipate paying cash
dividends in the foreseeable future.
THE COMPANY
We are a pharmacy benefit management organization that provides a broad
range of services to the pharmaceutical health care industry and employers. We
promote the cost-effective delivery of pharmacy benefits to plan members and the
public. We target organizations involved in three key industry segments:
o sponsors of public and private health plans (such as HMOs and other
managed care organizations, long-term care facilities such as nursing
homes and assisted living facilities, and employers);
o retail pharmacies; and
o pharmaceutical manufacturers and distributors.
We offer services providing financial benefits to each of them. We
specifically target small to medium sized HMOs, self-funded groups and third
party administrators (who in turn market to self-funded groups on our behalf).
We work with plan sponsors and local health care professionals on both a risk
(e.g., fixed cost per plan participant or "capitated") and non-risk (e.g., a
price per prescription submitted or "fee-for-service") basis to design,
implement and manage innovative pharmacy benefit management programs to control
pharmacy costs under the plans. Our programs promote the clinically appropriate
substitution of generic drugs and less expensive bio-equivalent brand name drugs
for equivalent but more expensive brand name drugs.
Our principal executive offices are located at One Blue Hill Plaza, Pearl
River, New York 10965 (Telephone Number: (914) 735-3555). Unless the context
otherwise requires, all references to "we," "us" or "our company" refers to MIM
Corporation and its predecessors and subsidiaries.
USE OF PROCEEDS We will not receive any of the proceeds of sales of Common Stock byfrom the Selling Security Holders.
SELLING SECURITY HOLDERS
This Prospectus relates to possible sales by the following Selling Security
Holders:
Percentagesale of
Shares Owned Outstanding
and Which Shares Owned Before
Name May Be Sold Offering(1)
---- ----------- -----------
The Corvese Irrevocable
Trust-1992 704,760 5.1%
E. David Corvese(2)(3) 672,106(4) 4.9%
Nancy P. Corvese(3) 672,106 4.9%
The Corvese Family Trust-1994 195,782 1.4%
The Peterson Family Trust-1994 78,299 *
---------
Total 2,323,053
9
- ----------
* Less than 1%.
(1) Represents the percentage of the outstanding shares of our Common Stock as
of July 30, 1998.
(2) E. David Corvese served as our Vice Chairman until March 31, 1998. He had
been on administrative leave from all of his responsibilities and duties
with respect to our company since January 1, 1998. Mr. Corvese is not
expected to be nominated or reelected as a director of our company at our
1998 Annual Meeting of Stockholders to be held on August 21, 1998.
(3) E. David Corvese and Nancy Corvese are husband and wife. Accordingly,
pursuant to the rules of the Commission, each may be deemed to beneficially
own
the shares of common stock offered by the other person. Each such person disclaims beneficial
ownershipselling stockholder under this
prospectus.
7
SELLING STOCKHOLDER
The following table sets forth, as of August 23, 2001, the identity
of the selling stockholder, the number of shares of common stock owned by the
other person.
(4) Asselling stockholder prior to this offering and the number of July 30, 1998, Mr. Corvese beneficially owned an additional 3,090,750
shares which are not covered by this Prospectus.
In each instance, the shares which may be sold are the only shares of ourcommon
stock whichoffered by the Selling Security Holders own on the date ofselling stockholder under this Prospectus
(other than Mr. Corvese, who beneficially owned an additional 3,090,750 shares
as of July 30, 1998).prospectus.
Because the Selling Security Holdersselling stockholder may sell all, some or none of theirthe
common stock offered under this prospectus, no estimate can be given as to the
amount of common stock that will be held by the selling stockholder upon
termination of the offering. See "Plan of Distribution."
Number of Shares
Beneficially Owned Maximum Number of
Name of Selling Stockholder Prior to the Offering Shares Being Offered
- ------------------------------- ---------------------- ---------------------
Livingston Group LLC*........... 1,457,947 1,457,947
- -------------
* A Schedule 13D filed on June 8, 2001 discloses that John Chay has sole
voting and dispositive power over these shares. Three of our employees are
members of Livingston Group LLC.
In connection with our acquisition of all of the interests of
American Disease Management Associates, LLC ("ADIMA"), the selling members of
ADIMA formed Livingston Group LLC as a holding company to hold those shares of
Common Stock,MIM issued as part of the consideration for the purchase of ADIMA. At the time
of the acquisition, we cannot estimateentered into a registration rights agreement with
Livingston Group LLC which is incorporated by reference as an exhibit to the
actual numberregistration statement, of shares which will be offered pursuant to this Prospectus or the number (or
percentage of outstanding shares) of shares to be held after the offering.
METHODprospectus forms a part.
PLAN OF SALEDISTRIBUTION
This Prospectusprospectus relates to the possible offer and sale by the selling
stockholder of up to 1,457,947 shares of common stock, par value $.0001 per
share.
The shares covered by this prospectus may be offered and sold from
time to time by the Selling Security Holdersselling stockholder. The selling stockholder will act
independently of theirus in making decisions with respect to the timing, manner and
size of each sale. The selling stockholder may sell the shares being offered
hereby on the Nasdaq Stock Market, or otherwise, at prices and under terms then
prevailing, at prices related to the then current market price, or at negotiated
prices. Registration of Common Stock. We have registered
their shares for resale to provide them with freely tradeable securities.
However, registration of theirthe shares does not necessarily mean that they will
offer or sell any of their shares.the
shares will be offered by the selling stockholder.
The selling stockholder has advised us that it is not a party to any
agreement or other understanding to distribute the securities, directly or
indirectly.
Shares may be sold at any time and from time to time, when and if so
determined by the selling stockholder, by one or more of the following means of
distribution:
8
o block trades in which the broker-dealer so engaged will attempt to
sell such shares as agent, but may position and resell a portion of
the block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
o over-the-counter distributions in accordance with the rules of the
NASD;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
o privately negotiated transactions.
We will not receive any of the proceeds from the offering or sale of their shares.shares by
the selling stockholder. We will bear all expenses in connection with the
registration of the common stock except that the selling stockholder will pay
all underwriting commissions and similar selling expenses, brokerage fees and
transfer taxes as well as fees of its counsel.
In connection with any distributions of the shares, the selling
stockholder may enter into hedging transactions with broker-dealers or other
financial institutions who may engage in short sales of our common stock in the
course of hedging the positions they assume with the selling stockholder. The
Selling Security Holders have informed us that theyselling stockholder also may (i) sell the common stock short and redeliver the
shares to close out such short positions; (ii) enter into option or other
transactions with broker-dealers or other financial institutions which require
the delivery thereto of Common Stockthe shares offered hereby, which shares such
broker-dealer or other financial institutions may resell pursuant to which this
Prospectus relates from timeprospectus (as supplemented or amended to time on Nasdaq,
where our Common Stock is listed for trading, inreflect such transaction); or (iii)
pledge such shares to a broker-dealer or other markets where our Common
Stock is traded, in negotiated transactionsfinancial institution, and, upon
a default, such broker-dealer or in a combinationother financial institution, may effect sales
of such methods
of sale. They will sellpledged shares pursuant to this prospectus (as supplemented or amended
to reflect such transaction). In addition, any such shares that qualify for sale
pursuant to Rule 144 under the Common Stock at prices which are current whenSecurities Act may be sold under that Rule rather
than pursuant to this prospectus.
In effecting sales, brokers, dealers or agents engaged by the
sales take place or atselling stockholder may arrange for other prices to which the parties agree. The respective
Selling Security Holders may use underwriters, brokers or dealers to sellparticipate.
Brokers, dealers or agents may receive commissions, discounts or concessions
from the selling stockholder in amounts to be negotiated prior to the sale. Such
brokers or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales, and any such commissions,
discounts or concessions may be deemed to be underwriting discounts or
commissions under the Securities Act.
In order to comply with the securities laws of certain states, the
shares and will pay any brokerage feesmust be sold in such states only through registered or commissions relating to sales by
them. Some sales may involve shareslicensed brokers
or dealers. In addition, in which the Selling Security Holders have
granted security interests and which are being sold as a result of foreclosure
of those security interests. Somecertain states shares may alsonot be sold by other people or
entities which receive the shares from one or more of the Selling Security
Holders by gift, by operation of law (including the laws of descent and
distribution) or by other transfers or assignments (including trust
distributions). The Selling Security Holders have informed us thatunless they
have not
yet selected a specific planbeen registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirements is available and
has been complied with.
9
The rules and regulations in Regulation M under the Exchange Act
provide that during the period that any person is engaged in the distribution
(as defined therein) of distribution.
Pursuant to the Separation Agreement dated as of March 31, 1998 among the
company, E. David Corvese and each of the affiliates listed on the signature
page thereto (together with E. David Corvese, the "Corvese Entities"), the
Corvese Entitiescommon stock, such person generally may not without our prior consent, sell in the public market
pursuant to this Prospectus in excess of 400,000purchase
shares of our Common Stock
during any month, or 150,000common stock. The selling stockholder may be subject to such
regulation which may limit the timing of its purchases and sales of shares of
our Common Stock during any week until
suchthe common stock.
At the time as E. David Corvese, together with any affiliates,a particular offer of shares is made, if required, a
prospectus supplement will be distributed that will set forth the beneficial
ownernumber of
10% or less of our outstanding shares of Common Stock (by sale or
dilution).
Webeing offered and the Selling Security Holdersterms of the offering, including the name of any
underwriter, dealer or agent, the purchase price paid by any underwriter, any
discount, commission and other item constituting compensation, any discount,
commission or concession allowed or reallowed or paid to any dealer, and the
proposed selling price to the public.
We have agreed to indemnify each otherthe selling stockholder, and certain other people or entitiesany person
controlling it, against certain liabilities, in connectionincluding liabilities under the
Securities Act. The selling stockholder has agreed to indemnify us and certain
related persons against certain liabilities, including liabilities under the
Securities Act.
We have agreed with the selling stockholder to keep the registration
statement, of which this prospectus constitutes a part, effective until the
earlier of the sale of all the shares of Common Stock.
10
DESCRIPTION OF CAPITAL STOCK
Authorized Capital Stock
Our authorized capital stock consists of 40,000,000 shares of Common Stock
and 5,000,000 shares of Preferred Stock. As of July 30, 1998, we had 13,822,000
shares of Common Stock issued and outstanding and no shares of Preferred Stock
issued and outstanding.
Our Common Stock is listed for trading on Nasdaq underor 90 days following the symbol "MIMS."
The transfer agent and registrar for our Common Stock is American Stock Transfer
and Trust Company.
Common Stock
The holders of our Common Stock are entitled to one vote for each share
held of record on all matters submitted to the vote of stockholders, including
the election of directors. The holders of our Common Stock do not have
cumulative voting rights. Subject to any preferential rights held by holderseffective date of
the Preferred Stock, the holders of our Common Stock are entitled to receive
ratably such dividends asregistration statement.
Agents, underwriters or dealers may be declared from time to time by our Board of
Directors out of funds legally available therefor. In the event of our
liquidation, dissolutionengage in transactions with or
winding up, holders of our Common Stock will be
entitled to share ratably in all assets remaining after payment of liabilities
and the liquidation preference of outstanding Preferred Stock, if any. Holders
of our Common Stock do not have preemptive, conversion or redemption rights. All
the issued and outstanding shares of our Common Stock are duly authorized,
validly issued, fully paid and nonassessable. We have not declared or paid any
dividends on our Common Stock since our inception and we have no present
intention to do soperform services for us in the near future.
Preferred Stock
Our Boardordinary course of Directors, without further approval or action by the
stockholders, is authorized to issue shares of Preferred Stock in one or more
series and to fix as to any such series the dividend rate, redemption prices,
preferences on liquidation or dissolution, sinking fund terms, if any,
conversion rights, voting rights and any other preference or special rights and
qualifications. Issuances of Preferred Stock may adversely affect the rights of
holders of our Common Stock. Holders of Preferred Stock might, for example, be
entitled to preference in distributions to be made to stockholders upon our
liquidation, dissolution or winding up. In addition, holders of Preferred Stock
might enjoy voting rights that limit, qualify or adversely affect the voting
rights of holders of our Common Stock. Such rights of the holders of one or more
series of Preferred Stock might include the right to vote as a class with
respect to the election of directors, major corporate transactions or otherwise,
or the right to vote together with the holders of our Common Stock with respect
to any such matter. The holders of Preferred Stock might be entitled to cast
multiple votes per share. The issuance of Preferred Stock could have the effect
of delaying, deferring, or preventing a change in control of our company without
further action by the stockholders. We have no present plans to issue any shares
of Preferred Stock.
Anti-Takeover Provisions
Our Certificate of Incorporation and by-laws: (i) generally provide that
only a majority of our Board of Directors shall have the authority to fill
vacancies on the Board of Directors; (ii) provide that only directors, and not
stockholders, may call a special meeting of stockholders; (iii) establish an
advance notice procedure regarding stockholder proposals to be brought before an
annual or special meeting; and (iv) authorize our Board of Directors to issue
preferred stock without further stockholder approval. These provisions are
designed to encourage any person who desires to take control of and/or acquire
our company to enter into negotiations with our Board of Directors, thereby
making more difficult a change in control of our company by means of a tender
offer, a proxy contest or other non-negotiated means. In addition to encouraging
any person intending to attempt a takeover of our company to negotiate with our
Board of Directors, these provisions also curtail such person's
11
use of a dominant equity interest to control any negotiations with our Board of
Directors. Under such circumstances, our Board of Directors may be better able
to make and implement reasoned business decisions and protect the interest of
all of our stockholders.
LEGAL MATTERSbusiness.
VALIDITY OF COMMON STOCK
The validity of the securitiescommon stock offered by this Prospectushereby will be passed upon
for us by Barry A. Posner, Esq., our Vice President, Secretary and General Counsel. Mr. Posner beneficially owns an aggregateCounsel of less than one percent of
our Common Stock.the Company.
EXPERTS
The consolidated financial statements and the related financial statement
schedule of MIM Corporation and subsidiaries incorporated by referenceincluded in this
Registration Statement from the Annual Report
on Form 10-K for the fiscal year ended December 31, 19972000 and the historical financial
statements of American Disease Management Associates, LLC, as of December 31,
1999 and 1998 and for the three years in the period ended December 31, 1999,
both incorporated by reference in this prospectus, have been audited by Arthur
Andersen LLP, independent certified public accountants, as indicated in their
reportreports with respect thereto and are included hereinin this document in reliance upon
the authority of said firm as experts in giving
said report.
12accounting and auditing.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission using a "shelf" registration
process. Under this shelf process, one of our stockholders, which we refer to as
the selling stockholder, may sell up to an aggregate of 1,457,947 shares of
common stock in one or more offerings. You should read this prospectus and any
applicable prospectus supplement provided to you together with the additional
information described under the heading "Where You Can Find More Information."
10
The registration statement that contains this prospectus (including
the exhibits to the registration statement) contains additional information
about our company and the securities offered under this prospectus. That
registration statement can be read at the SEC web site or at the SEC offices
mentioned under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549. You can also obtain copies of the
documents at prescribed rates by writing to the Public Reference Section of the
SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. Our SEC filings are also available at the office of the Nasdaq
National Market, Inc. at 1735 K Street, N.W., Washington, D.C. 20006-1506.
The SEC allows us to incorporate by reference into this prospectus
the information that we file with the SEC, which means that we disclose
important information to you by referring to these documents and the information
contained therein. The information incorporated by reference is an important
part of this prospectus and the accompanying prospectus supplement. In addition,
any information that we file with the SEC subsequent to the date of this
prospectus will automatically update this prospectus. We incorporate by
reference the documents listed below and any filings that we make with the SEC
under sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
after the initial filing of the registration statement that contains this
prospectus and prior to the time that the selling stockholder sells all of the
common stock offered by this prospectus:
o Annual Report on Form 10-K for fiscal year ended December 31, 2000.
o Quarterly Report on Form 10-Q for the period ended June 30, 2001.
o Quarterly Report on Form 10-Q for the period ended March 31, 2001.
o Current Report on Form 8-K/A filed on October 18, 2000.
o The description of the common stock included in our Registration
Statement on Form 8-A/A dated May 20, 1999.
You may request a copy of these filings (other than an exhibit to a
filing unless that exhibit is specifically incorporated by reference into that
filing) at no cost, by writing to or telephoning us at the following address:
11
MIM Corporation
100 Clearbrook Road
Elmsford, New York 10523
(914) 460-1600
Attn: General Counsel
You should only rely on the information incorporated by reference or
set forth in this prospectus or any applicable prospectus supplement. We have
not authorized anyone else to provide you with different information. The
selling stockholder is only offering these securities in states where the offer
is permitted. You should not assume that the information in this prospectus or
the applicable prospectus supplement is accurate as of any date other than the
dates on the front of such documents.
================================================================================
1,457,947 Shares
MIM CORPORATION
Common Stock
--------------------------
PROSPECTUS
--------------------------
, 2001
================================================================================
PART II.II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses ofOf Issuance And Distribution
SEC registration fee........................................ $ 4,121
Legal fees and Distribution
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the securities being registered, other than
underwriting discounts and commissions:
Registration fee-- Securities and Exchange Commission ..... $ 2,805.48expenses..................................... $20,000
Accounting fees and expenses ..............................expenses................................ $20,000
Printing expenses........................................... $ 10,000.00(a)
Legal fees and expenses ...................................5,000
Miscellaneous............................................... $ 30,000.00(a)
Printing and engraving expenses ........................... $ 1,000.00(a)
Miscellaneous ............................................. $ 15,000.00(a)
Total ..................................................... -------------
$ 58,805.48
=============
- ----------
(a) Does not include expenses of preparing prospectus supplements and other
expenses relating to offerings of particular securities.879
-------
Total............................................. $50,000
=======
Item 15. Indemnification ofOf Directors andAnd Officers
Subsection (a) of
Section 145 of the Delaware General Corporation Law (the
"DGCL"law ("DGCL")
empowersprovides that a company tocorporation may indemnify any director or officer, or former
director or officer,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 administrative or investigative (other than an
action by or in the right of the company),corporation) by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding provided that such director
or officerif he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
company,corporation, and, with respect to any criminal action or proceeding, provided that such director or officer had no
reasonable cause to believe his or her conduct was unlawful. Subsection (b) of Section 145 of the DGCL empowersfurther
provides that a company tocorporation similarly may indemnify any director or officer, or former director or officer,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
companycorporation to procure a judgment in its favor, by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including
attorneys' fees) actually and reasonably incurred in connection with the defense
or settlement of such action or suit provided that such director or
officerif he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
company,corporation and except that no indemnification mayshall be made in respect of any
claim, issue or matter as to which such director or
officerperson shall have been adjudged to be
liable to the companycorporation unless and only to the extent that the Delaware Court
of Chancery or thesuch 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 director or officerperson is fairly and reasonably
entitled to indemnityindemnify for such expenses aswhich the Court of Chancery or such
other court shall deem proper.
Section 145102(b)(7) of the DGCL further provides thatpermits a corporation, in its
certificate of incorporation, to limit or eliminate, subject to some statutory
limitations, the liability of directors to the extentcorporation 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 directorknowing violation of law, (c) under Section 174 of
the DGCL (relating to unlawful payment of dividends and unlawful stock purchase
and redemption), or officer of a company has been successful in the defense of(d) for any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for in Section 145 shall not
be deemed exclusive of any other rights totransaction from which the indemnified party may be
entitled; and that the company shall have power to purchase and maintain
insurance on behalf of a director or officer of the company against any
liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the company
would have the power to indemnify him or her against such liabilities under
Section 145.
II-1derived an
The eighth paragraph of the Registrant'simproper personal benefit. MIM's restated Certificate of Incorporation provides
that no directorMIM's directors shall not be personally liable to the Registrantcompany or to its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability arising out of
clauses (a) through (d) in the preceding paragraph. The Certificate of
Incorporation and MIM's by-laws further provide that MIM shall indemnify its
directors and officers to the fullest extent that Section 102(b)(7) ofpermitted by the DGCL, as amended from time to
time (or any successor or additional provision), expressly provides that the
liability of a director may not be eliminated or limited.DGCL. In addition,
the
RegistrantMIM maintains director and officer liability insurance policies.
Item 16. Exhibits
5. Opinion of Counsel*
23. Consents
(i) Barry A. Posner, Esq. (counsel)--included in Exhibit 5
(ii) Arthur Andersen LLP (accountants)
3.1 -- Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to
the Registrant's Registration Statement on Form S-1, File No. 333-05327).
3.2 -- Amended and Restated By-Laws of the Registrant (incorporated by reference to Exhibit 3(ii) to the Company's
Quarterly Report on Form 10-Q for the period ended March 31, 1998).
4.1 -- Amended and Restated Rights Agreement dated as of May 20, 1999, between the Registrant and American Stock Transfer
and Trust Company (incorporated by reference to Exhibit 4.1 to Post-Effective Amendment No. 2 to the Registrant's
Form 8-A/A dated May 20, 1999).
4.2 -- Purchase Agreement among American Disease Management Associates, L.L.C., its Members and Certain Related Partners,
MIM Health Plans, Inc. and the Registrant, dated as of August 3, 2000 (incorporated by reference to Exhibit 2.1 to
the Registrant's Current Report on Form 8-K filed August 10, 2000).
4.3 -- Registration Rights Agreement between the Registrant and Livingston Group LLC dated as of August 3, 2000
(incorporated by reference to Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed August 10, 2000).
*5.1 -- Opinion of Barry A. Posner.
*23.1 -- Consent of Barry A. Posner (included as part of opinion
filed as Exhibit 5.1).
**23.2 -- Consent of Arthur Andersen LLP.
--------
* 24. Power of Attorney (included on the signature page hereto)
- ----------
*Previously filed.
** Filed herewith.
Item 17. Undertakings
The undersigned Registrantregistrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statementthe 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 this
Registration Statement.the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20%20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement; andregistration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statementthe registration
statement or any material change to such information in the
Registration Statement;registration statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(l)(ii) above shalldo not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrantregistrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration Statement.the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment willshall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time willshall 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.
II-2
(4) That,The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant'sregistrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement will be deemed to be a new Registration Statement
relating to the
securities offered herein, and the offering of such securities
at that time will be deemed to be the initial bona fide offering thereof.
(5) That, (i) for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective and (ii) for the
purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectusregistration statement shall be deemed to be a new Registration Statementregistration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrantregistrant pursuant to the foregoing provisions described under Item 15
above, or otherwise, the Registrantregistrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrantregistrant of expenses incurred or paid by a director, officer or
controlling person of the Registrantregistrant 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 Registrantregistrant will, unless
in the opinion of its counsel for the
Registrant 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 Securities Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrantregistrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Citycity of New York andElmsford, State of New
York, on August 12, 1998.23, 2001.
MIM CORPORATION
By: /s/ Barry A. Posner
-------------------------------------
Barry A. Posner
Vice President, Secretary and
General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard H. Friedman ---------------------------------
Richard H. Friedman
Chairmanand Barry A. Posner
and each of them acting individually, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the Boardsame, with all exhibits thereto,
and Chief Executive Officer
POWER OF ATTORNEYother documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that each of
said attorneys-in-fact, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities andindicated on the dates indicated. Each person whose signature appears below
hereby constitutes and appoints23rd day of August, 2001.
SIGNATURE TITLE
/s/ Richard H. Friedman as such person's trueChairman of the Board, Chief
---------------------------------- Executive Officer and lawful attorney-in-factDirector
Richard H. Friedman (Principal Executive Officer)
/s/ Donald A. Foscato (Principal Financial Officer
---------------------------------- and agent, with full power of substitution to sign for
such person and in such person's name and capacity indicated below, any and all
amendments to this Registration Statement, including post-effective amendments
thereto, and to file the same with the Securities and Exchange Commission,
hereby ratifying and confirming such person's signature as it may be signed by
said attorney to any and all amendments.
-----------------
Name Title Date
---- ----- ----
Chairman, Chief Executive August 12, 1998
/s/ Richard H. Friedman Officer and Director
- -------------------------- (Principal Executive Officer)
Richard H. Friedman
Chief Financial Officer, August 12, 1998
Chief Operating Officer and
/s/ Scott R. Yablon Director
- -------------------------- (Principal Financial Officer)
Scott R. Yablon
/s/ Richard A. Cirillo
- --------------------------
Richard A. Cirillo Director August 12, 1998
/s/ Martin Michael Kooper
- --------------------------
Martin Michael Kooper Director August 12, 1998
S-1Principal Accounting Officer)
Donald A. Foscato
/s/ Richard A. Cirillo Director
----------------------------------
Richard A. Cirillo
/s/ Louis DiFazio Director
----------------------------------
Louis DiFazio
/s/ Harold Ford Director
----------------------------------
Harold Ford
/s/ Michael Kooper Director
----------------------------------
Michael Kooper
/s/ Louis A. Luzzi Director
----------------------------------
Louis A. Luzzi
/s/ Ronald K. Shelp Director
----------------------------------
Ronald K. Shelp
Name Title Date
---- ----- ----EXHIBIT INDEX
Exhibit Sequential
No. Description Of Exhibits Page No.
------------- ------------------------------------------------------------------------- --------
/s/ Louis DiFazio
- --------------------------
Louis DiFazio Director3.1 -- Amended and Restated Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on Form S-1, File
No. 333-05327).
3.2 -- Amended and Restated By-Laws of the Registrant (incorporated by reference to Exhibit
3(ii) to the Registrant's Quarterly Report on Form 10-Q for the period ended March 31,
1998).
4.1 -- Amended and Restated Rights Agreement dated as of May 20, 1999, between the Registrant
and American Stock Transfer and Trust Company (incorporated by reference to Exhibit 4.1
to Post-Effective Amendment No. 2 to the Registrant's Form 8-A/A dated May 20, 1999).
4.2 -- Purchase Agreement among American Disease Management Associates, L.L.C., its Members and
Certain Related Partners, MIM Health Plans, Inc. and the Registrant, dated as of August
12, 1998
/s/ Louis3, 2000 (incorporated by reference to Exhibit 2.1 to the Registrant's Current Report on
Form 8-K filed August 10, 2000)
4.3 -- Registration Rights Agreement between the Registrant and Livingston Group LLC dated as
of August 3, 2000 (incorporated by reference to Exhibit 4.1 to the Registrant's Current
Report on Form 8-K filed August 10, 2000).
*5.1 -- Opinion of Barry A. Luzzi
- --------------------------
LouisPosner.
*23.1 -- Consent of Barry A. Luzzi, Ph.D Director August 12, 1998
S-2
INDEX TO EXHIBITS
Exhibit
No. Description
--- -----------
5. Opinion of Counsel*
23. Consents
(i) Barry A. Posner, Esq. (counsel)--included in Exhibit 5
(ii) Arthur Andersen LLP (accountants)*
24. Power of Attorney (included on the signature page hereto)
- ----------Posner (included as part of opinion filed as Exhibit 5.1).
**23.2 -- Consent of Arthur Andersen LLP.
--------
* Previously filed.
** Filed herewith.