U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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November 24, 1998
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Date of Report (Date of earliest event reported)
MIM CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
Delaware 0-28740 05-0489664
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(State of Organization) (Commission File Number) (IRS Employer
Identification No.)
100 Clearbrook Road
Elmsford, New York 10523
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(Address of Registrant's Principal Executive Office) (Zip Code)
(914) 460-1600
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(Registrant's telephone number, including area code)
Item 5. Other Events.
On November 24, 1998, the Board of Directors (the "Board") of MIM
Corporation (the "Company") declared a dividend distribution of one right (a
"Right") for each outstanding share of the Company's common stock, par value
$.0001 per share ("Company Common Stock"), to stockholders of record at the
close of business on December 4, 1998 (the "Record Date") and for each share of
Company Common Stock issued (including shares distributed from the Company's
treasury) by the Company from and after the Record Date up to, but not including
the Distribution Date (as defined below). Each Right will entitle the registered
holder, subject to the terms of the Rights Agreement (as defined below), to
purchase from the Company one one-thousandth of a share (a "Unit") of Series A
Junior Participating Preferred Stock, par value $.0001 per share ("Preferred
Stock"), of the Company, at a purchase price of $20.00 per share, in cash (the
"Purchase Price"), subject to adjustment as more fully set forth below. The
description and terms of the Rights are set forth in a Rights Agreement, dated
as of November 24, 1998 (the "Rights Agreement"), between the Company and
American Stock Transfer and Trust Company, as Rights Agent. In general, each
Unit has substantially the same economic attributes and voting rights as one
share of Company Common Stock.
The Rights Agreement (including the form of Rights Certificate) is
attached hereto as Exhibit 4.1 and the Certificate of Designations of Series A
Junior Participating Preferred Stock filed with the Delaware Secretary of State
on December 3, 1998 (the "Certificate of Designations") is attached hereto as
Exhibit 4.2 and each of them is incorporated herein by reference in its
entirety. The following summary description of the Rights and the Preferred
Stock does not purport to be complete and is qualified in its entirety by
reference to all of the terms and provisions of the Rights Agreement and the
Certificate of Designations, including the definitions therein of certain terms.
The Company's press release regarding the Board's adoption of the Rights plan is
attached hereto as Exhibit 99.1 and is also incorporated herein by reference in
its entirety.
In addition, on November 24, 1998, the Company amended its By-Laws to add
a provision requiring advance written notice to the Company of certain
stockholder action to be taken by written consent. The text of the amendment to
the By-Laws is attached hereto as Exhibit 3.1.
Description of the Rights
Initially, the Rights will attach to all certificates representing shares
of outstanding Company Common Stock, and no separate Rights certificates will be
distributed and the Rights will not be separately traded. The Rights will
separate from the Company Common Stock and Rights certificates will be
separately distributed (the "Distribution Date") and the Rights will be
separately traded upon the earliest to occur of (i) ten (10) business days (or,
subject to certain limitations, such later date as may be determined by action
of the Board prior to such time) following a public announcement (the date of
such announcement being the "Stock Acquisition Date") that (a) a person or group
of affiliated or associated persons (an "Acquiring Person") has acquired,
obtained the right to acquire, or otherwise obtained beneficial ownership of 15%
or more of the then outstanding shares of Company Common Stock or (b) the Board
has, in accordance with the criteria set forth in the Rights Agreement, declared
a person who beneficially owns at least 10% of the then outstanding shares of
Company Common Stock to be an "Adverse Person," (ii) ten (10) business days (or,
subject to certain limitations, such later date as may be determined by action
of the Board prior to such time) following the commencement of a tender offer or
exchange offer that would result in a person or group beneficially owning 15% or
more of the then outstanding shares of Company Common Stock (other than a tender
or exchange offer for all outstanding shares of Company Common Stock at a price
and on terms that the Board determines to be fair to and otherwise in the best
interests of the Company and its stockholders (a "Permitted Offer")), (iii) the
date on which it is publicly announced that a person or group has acquired
beneficial ownership of 40% or more of the then outstanding shares of Company
Common Stock and (iv) the occurrence of a Flip-Over Event (as defined below).
Until the Distribution Date, (i) the Rights will be evidenced by Company Common
Stock certificates and will be transferred with and only with such Company
Common Stock certificates, (ii) new Company Common Stock certificates issued
after the Record Date (including shares distributed from the Company's treasury)
will contain a notation incorporating the Rights Agreement by reference and
(iii) the surrender for transfer of any certificates evidencing outstanding
Company
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Common Stock will also constitute the transfer of the Rights associated with the
Company Common Stock evidenced by such certificates.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on November 24, 1998, unless the Rights are earlier
redeemed or exchanged by the Company as described below.
As soon as practicable after the Distribution Date, separate Certificates
evidencing the Rights ("Rights Certificates") will be mailed to holders of
record of Company Common Stock as of the close of business on the Distribution
Date and, thereafter, the separate Rights Certificates alone will represent the
Rights.
In the event (a "Flip-In Event") that (i) a person becomes an Acquiring
Person (other than pursuant to a "Flip-Over Event" (as defined below)), (ii) the
Board declares a person to be an Adverse Person, (iii) the Company is the
surviving corporation in a merger with an Acquiring Person in which shares of
Company Common Stock shall remain outstanding, (iv) an Acquiring Person or an
Adverse Person engages in one or more "self-dealing" transactions specified in
the Rights Agreement, or (v) during such time that an Acquiring Person or an
Adverse Person exists, an event occurs which results in such Acquiring Person's
or Adverse Person's ownership interest being increased by more than 1% (e.g., by
means of a reverse stock split or recapitalization), then, in each such case,
each holder of a Right will thereafter have the right to receive, upon exercise,
Units (or, in certain circumstances, cash, property or other securities of the
Company) having a value equal to two times the exercise price of the Right. The
exercise price is the Purchase Price multiplied by the number of Units issuable
upon exercise of a Right prior to the Flip-In Event. Notwithstanding the
foregoing, following the occurrence of any Flip-In Event all Rights that are, or
(under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person or Adverse Person (or by certain
related parties) will be null and void.
In the event (a "Flip-Over Event") that, at any time following the Stock
Acquisition Date or at a time that Continuing Directors (as defined below)
constitute less than a majority of the Company's Board of Directors, (i) the
Company is acquired in a merger or other business combination transaction and
the Company is not the surviving corporation, (ii) any person consolidates or
merges with the Company and all or part of the Company Common Stock is converted
or exchanged for securities, cash or property of any other Person, or (iii) 50%
or more of the Company's assets or earning power is sold or transferred, then,
in each such case, each holder of a Right (except Rights which previously have
been voided as described above) shall be entitled to receive, upon exercise,
common stock of the Acquiring Person or Adverse Person having a value equal to
two times the exercise price of the Right.
The Purchase Price payable, and the number of Units issuable, upon
exercise of the Rights are subject to adjustment from time to time to prevent
economic and voting rights dilution (i) in the event of a stock dividend on, or
a subdivision, combination or reclassification of, the Company Common Stock,
(ii) if holders of the Company Common Stock are granted certain rights or
warrants to subscribe for Company Common Stock or convertible securities at less
than the current market price of the Company Common Stock, or (iii) upon the
dividend or distribution, as the case may be, of evidences of indebtedness, cash
or assets (excluding regular quarterly cash dividends) or of subscription rights
or warrants (other than those referred to above) to the holders of the Company
Common Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. The Company is not required to issue fractional Units. In lieu thereof,
an adjustment in cash may be made based on the market price of the Company
Common Stock prior to the date of exercise.
At any time prior to the Distribution Date, except as described below, the
Company may redeem the Rights in whole, but not in part, at a price of $.0001
per Right (the "Redemption Price"), subject to adjustment in certain events,
payable, at the election of the Board, in cash, shares of Company Common Stock
or such other
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form of consideration as the Board may determine. Immediately upon effectiveness
of the action of the Board ordering the redemption of the Rights, the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price. The ten-day period of redemption between the Stock
Acquisition Date and the Distribution Date may be extended by the Board so long
as the Rights are then redeemable.
At any time prior to the Distribution Date, the Company may exchange the
Rights (other than Rights owned by an Acquiring Person or an Adverse Person, or
an affiliate or an associate of an Acquiring Person or an Adverse Person, which
will have become null and void), in whole or in part, for shares of Company
Common Stock at an exchange ratio determined as provided in the Rights
Agreement.
Until a Right is exercised, the holder thereof will have no rights as a
stockholder of the Company with respect to such Right, including, without
limitation, the right to vote or to receive dividends. Following exercise of a
Right, the holder's rights will be determined by the type of consideration
received upon the exercise. Although the distribution of the Rights should not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Units (or other consideration) or are exchanged as provided in
the preceding paragraph.
Except as described below, the provisions of the Rights Agreement may be
amended without the approval of the holders of Company Common Stock at any time
prior to the Distribution Date. After the Distribution Date, the provisions of
the Rights Agreement may be amended in order to (i) cure any ambiguity, defect
or inconsistency, (ii) make changes which do not adversely affect the interests
of holders of Rights (excluding the interests of any Acquiring Person or Adverse
Person), or (iii) shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time period
governing redemption may be made after the Rights are no longer redeemable.
Notwithstanding the other provisions of the Rights Agreement, the Board
may not designate any transaction as a Permitted Offer, or authorize any
redemption of Rights or amendment of the Rights Agreement, during the period of
180 days after Continuing Directors cease to constitute a majority of the Board.
A "Continuing Director" is (i) any member of the Board who was a member of the
Board prior to the date of this Agreement, while such Person is a member of the
Board, so long as such Person is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative or nominee of an Acquiring
Person or of any such Affiliate or Associate or, (ii) any Person who becomes a
member of the Board after the date of this Agreement, pursuant to a nomination
for election or election to the Board that is recommended or approved by a
majority of the Continuing Directors, while such Person is a member of the
Board, so long as such Person is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person.
As of December 3, 1998, there were outstanding 17,890,739 shares of Company
Common Stock, no shares of Company Common Stock held in treasury, and 328,767
shares of Company Common Stock reserved for issuance pursuant to employee
benefit plans. So long as the Rights are attached to the Company Common Stock,
the Company will issue one Right with each new share of Company Common Stock.
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Item 5. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
Exhibit Number Exhibit
3.1 Amendment No. 1 to Amended and Restated By-Laws.
4.1 Rights Agreement, dated as of November 24, 1998, between MIM
Corporation and American Stock Transfer and Trust Company, as
Rights Agent.
4.2 Certificate of Designations of Series A Junior Participating
Preferred Stock.
99.1 Press Release, dated November 25, 1998.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
MIM CORPORATION
By: /s/ Barry A. Posner
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Barry A. Posner
Vice President and General Counsel
Date: December 3, 1998
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EXHIBIT INDEX
Exhibit Number Exhibit
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3.1 Amendment No. 1 to Amended and Restated By-Laws.
4.1 Rights Agreement, dated as of November 24, 1998, between MIM
Corporation and American Stock Transfer and Trust Company, as
Rights Agent.
4.2 Certificate of Designations of Series A Junior Participating
Preferred Stock.
99.1 Press Release, dated November 25, 1998.
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