SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(Rule 13d-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. )*
MIM Corporation
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(Name of Issuer)
Common Stock $.0001 Par Value Per Share
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(Title of Class of Securities)
553 044-10-8
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(CUSIP Number)
Abba David Poliakoff, Esquire
Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC
233 E. Redwood Street,
Baltimore, Maryland 21202
(410) 576-4067
Stephen Hamilton, Esquire
Skadden, Arps, Slate, Meagher & Flom, LLP
1440 New York Avenue N.W.
Washington, DC 20005-2107
(202) 371-7010
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 10, 2001
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1 (e), 13d-1(f) or 13d-1(g), check the
following box |X|.
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See Rule
13d-7(b) for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 8 Pages)
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
SCHEDULE 13D
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CUSIP NO. 553 044-10-8 PAGE 2 OF 8
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Livingston Group LLC* 52-2248950
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e)
[_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Maryland
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NUMBER OF 7 SOLE VOTING POWER
SHARES 2,697,947
BENEFICIALLY ----------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 0
REPORTING ----------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
2,697,947
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10 SHARED DISPOSITIVE POWER
----------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,697,947
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.20%
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14 TYPE OF REPORTING PERSON
OO
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* Livingston Group LLC is a Maryland limited liability company which acted as
the "Designated Seller" in a Purchase Agreement between the issuer and American
Disease Management Associates, L.L.C., and which acquired the shares referred to
above in that transaction. The members of Livingston Group, LLC are: John Chay,
Bruce Blake, Elizabeth Williams, Sal Rafanelli, George Brown, David Brown,
Christopher Brown and Kathy Noonan.
SCHEDULE 13D
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CUSIP NO. 553 044-10-8 PAGE 3 OF 8
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
John Chay
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e)
[_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES 2,697,947*
BENEFICIALLY ----------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING ----------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
2,697,947*
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10 SHARED DISPOSITIVE POWER
----------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,697,947
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.20%
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14 TYPE OF REPORTING PERSON
IN
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* Represents shares owned by Livingston Group, LLC, of which Mr. Chay is the
managing member and the controlling member of the entity by virtue of his
ownership of 50% of the membership interests of the entity.
SCHEDULE 13D
Item 1. Security and Issuer
The title and class of equity securities to which this Schedule 13D relates
is common stock, par value $.0001 per share ("Common Stock"), issued by MIM
Corporation (the "Issuer"), the principal executive offices of which are located
at 100 Clearbrook Road, Elmsford, New York 10523.
Item 2. Identity and Background
A. This statement is filed by Livingston Group, LLC, a Maryland limited
liability company, through John Chay, its managing member (collectively, the
"Reporting Person"). The Reporting Person's principal executive offices and
principal business are located at 16 East Willow Avenue, Towson, Maryland 21286.
The Reporting Person was created for the purpose of the holding the 2,697,947
shares of Common Stock received in the transaction described in Item 3. Mr. Chay
is the managing member and the controlling member of the Reporting Person by
virtue of his ownership of 50% of the membership interests of the entity. Mr.
Chay has sole power to vote and dispose of the shares, provided that the
exercise of the demand registration rights under the Registration Rights
Agreement described in Item 6 must be approved by members holding 51% of the
membership interests of the Reporting Person.
B. The identity and background of the principal members of the Reporting
Person is as follows:
1. (a) John Chay
(b) 2200 Pine Hill Farms Lane, Cockeysville, Maryland 21030
(c) Since 1999, Mr. Chay has been a private investor and has served as
a principal in Harvest Investment Group, an entity that he founded that invests
in healthcare related companies and services. He is also a principal in the
Summit Group, a developer and builder of active adult communities. Since August
2000, Mr. Chay has also served as the managing member of Livingston Group, LLC.
(d)See below
(e) See below
(f) United States
2. (a) Bruce Blake
(b) 88 Bayberry Avenue, Mahwah, New Jersey 07430
(c) Mr. Blake is the President of American Disease Management
Associates, L.L.C., an indirect wholly owned subsidiary of the Issuer.
(d) See below
(e) See below
(f) United States
3. (a) Elizabeth Williams
(b) 42 Edgemere Drive, Matawan, New Jersey 07747
(c) Ms. Williams is the Executive Vice President of American Disease
Management Associates, L.L.C., an indirect wholly owned subsidiary
of the Issuer.
(d) See below
(e) See below
(f) United States
Page 4 of 8
4. (a) Sal Rafanelli
(b) 87 Warbler Drive, Wayne, New Jersey 07470
(c) Mr. Rafanelli is the Vice President of American Disease Management
Associates,L.L.C.,an indirect wholly owned subsidiary of the Issuer.
(d) See below
(e) See below
(f) United States
5. (a) George Brown
(b) 16 East Willow Avenue, Towson, Maryland 21286
(c) Mr. Brown is a principal in George Brown and Associates, CPA
(d) See below
(e) See below
(f) United States
During the last five years, neither the Reporting Person nor any of the
persons set forth above, (i) has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors), or (ii) has been a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which he, she or it was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, Federal or State securities laws, or finding
any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The Reporting Person acquired the 2,697,947 shares of Common Stock (the
"Shares") as the "Designated Seller" in a Purchase Agreement dated August 3,
2000 between the Issuer and American Disease Management Associates, L.L.C., a
Delaware limited liability company ("ADIMA"), Radix Capital Investment Group,
LLC, a Delaware limited liability company, Elizabeth Williams, Bruce Blake and
Sal Rafanelli, pursuant to which the Issuer, through its subsidiary, MIM Health
Plans, Inc., acquired all of the issued and outstanding membership interests of
ADIMA.
Item 4. Purpose of Transaction
As reflected in the Reporting Person's Schedule 13G filed on August 14,
2000 with respect to the Shares, the Reporting Person initially acquired the
Shares for investment purposes upon the sale to the Issuer by the principals of
the Reporting Person of their company, American Disease Management Associates,
LLC ("ADIMA"). Before the sale, Elizabeth Williams, Bruce Blake and Sal
Rafanelli (the "Principal Management"), were, and now continue to be, the senior
management of ADIMA.
The Reporting Person, through John Chay, has recommended to the Issuer's
Chief Executive Officer, Richard H. Friedman (the "CEO"), that the Issuer's
strategic business plan be revised in a manner that will facilitate enhancement
of the Issuer's business and prospects, increase the Issuer's profitability, and
enhance shareholder values. The Reporting Person has outlined general concepts
to be included in a plan to restructure and recapitalize the Issuer and
re-engineer its strategic goals. These concepts include the reorganization of
the company and refocus of its principal business units to further the growth of
the specialty pharmacy services, including increase of top-line revenues through
niche market opportunities, improvement of the Issuer's overall margins,
enhancement of cash flow, introduction of a revitalized management team, and the
application of the business principles profitably employed by the Principal
Management and its advisors as ADIMA's successful business model prior to the
sale. Mr. Chay has also advocated introduction on the Board of directors who
have extensive experience directly in the managed health care services sector.
Page 5 of 8
The Reporting Person has nominated three persons for election to the Board
of Directors at the Issuer's 2001 Annual Meeting of Shareholders. A copy of the
Reporting Person's letter of nomination is attached hereto as Exhibit 2.
Except as described above, the Reporting Person has no plans or proposals
to influence the control of the Issuer. However, subject to the Issuer's
willingness to seriously consider and discuss the Reporting Person's plans and
proposals, the Reporting Person may in the future propose one or more
extraordinary corporate transactions involving the Issuer, a sale or transfer of
all or part of the Issuer's assets, changes in the Issuer's charter and bylaws
or such other action as may be appropriate in the Reporting Person's judgment
and discretion, or may take certain actions that may influence control of the
Issuer, including but not limited to, the purchase of additional Shares or
disposition of Shares from time to time in open market or privately negotiated
transactions. In determining whether to purchase or dispose of Shares, the
Reporting Person will consider various factors, including, without limitation,
the following: the availability of Shares for purchase at particular price
levels; the business and prospects of the Issuer; the cash availability and
needs of the Reporting Person; other business and investment opportunities
available to the Reporting Person; economic conditions; applicable legal and
regulatory requirements, if any; and other plans and requirements of the
Reporting Person.
Item 5. Interest in Securities of the Issuer.
(a) As of the date hereof, the Reporting Person and John Chay beneficially
own 2,697,947 shares, or 13.205% of the issued and outstanding Common Stock. The
percentages of outstanding shares of Common Stock used in this Schedule are
calculated based upon the 20,434,120 shares of Common Stock stated by the Issuer
to be issued and outstanding at March 1, 2001, as reflected in the Issuer's
Annual Report on Form 10-K for the year ended December 31, 2000.
(b) The Reporting Person through John Chay, its managing member, has the
sole power to vote or to direct the vote of, and sole power to dispose or direct
the disposition of, 2,697,947 shares of the Common Stock.
(c) There have been no transactions with respect to the Issuer's Common
Stock within the last 60 days by the Reporting Person.
(d) Not applicable
(e) Not applicable
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer
The Reporting Person and its members have entered into the following
contracts, arrangements, understandings or relationships with the Issuer or its
affiliates.
PURCHASE AGREEMENT AND EXHIBITS: The Reporting Person, as the "Designated
Seller," entered into the Purchase Agreement dated August 3, 2000 between the
Issuer and ADIMA, Radix Capital Investment Group, LLC, a Delaware limited
liability company, Elizabeth Williams, Bruce Blake and Sal Rafanelli, pursuant
to which the Issuer, through its subsidiary, MIM Health Plans, Inc., acquired
all of the issued and outstanding membership interests of ADIMA in exchange for
$19,000,000 in cash and the 2,697,947 shares of the Issuer's Common Stock issued
to the Reporting Person. The Purchase Agreement and the exhibits thereto have
been filed by the Issuer as Exhibits to its Form 8-K, File No. 000-28740, on
August 10, 2000.
REGISTRATION RIGHTS AGREEMENT (Exhibit C to the Purchase Agreement): The
Issuer and the Reporting Person entered into a Registration Rights Agreement
dated as of August 3, 2000 (the "Registration Agreement"). The Registration
Page 6 of 8
Agreement grants the Reporting Person, certain demand rights with respect to
registration under the 1933 Act. The Registration Agreement also grants
"piggy-back" rights to the Reporting Person to participate in certain
registration statements filed by the Issuer.
EMPLOYMENT AGREEMENTS: Bruce Blake, Elizabeth Williams and Sal Rafanelli,
members of the Reporting Person, have entered into three-year employment
agreements with ADIMA, a subsidiary of the Issuer, dated August 3, 2000.
Pursuant to the employment agreements, Mr. Blake, serves as President, Ms.
Williams serves as Executive Vice President and Mr. Rafanelli serves as Vice
President of ADIMA. Mr. Blake's employment agreement is Exhibit B-1 to the
Purchase Agreement. Ms. William's and Mr. Rafanelli's employment agreements are
filed as Exhibits to this Schedule 13D.
Except as set forth above, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) between the Reporting
Person and any other person with respect to any securities of the Issuer
(including, but not limited to, any contract, arrangement, understanding or
relationship involving the transfer or voting or any securities, finder's fees,
joint ventures, loan or option arrangements, puts or calls, guarantees of
profits, divisions of profits or loss, or the giving or withholding of proxies),
although the Reporting Person reserves the right to develop such in the future.
Item 7 Material to be Filed as Exhibits
Exhibit 1 Agreement Regarding Joint Filing of Statement on Schedule 13D
Exhibit 2 Livingston's Notice of Intent to Nominate Directors
Exhibit 3 Employment Agreement dated August 3,2000 between Elizabeth
Williams and ADIMA.
Exhibit 4 Employment Agreement dated August 3,2000 between Sal Rafanelli
and ADIMA.
Page 7 of 8
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 15, 2001 THE LIVINGSTON GROUP LLC
By:/s/ John Chay
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John Chay, Managing Member
/s/ John Chay
--------------------------------
John Chay, individually
Page 8 of 8
Exhibit 1
AGREEMENT REGARDING JOINT FILING
OF STATEMENT ON SCHEDULE 13D
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement shall be filed on behalf of each of the
undersigned without the necessity of filing additional joint filing agreements.
The undersigned acknowledge that each shall be responsible for the timely filing
of such amendments, and for the completeness and accuracy of the information
concerning it contained therein, but shall not be responsible for the
completeness and accuracy of the information concerning the others, except to
the extent that it knows or has reason to believe that such information is
inaccurate.
This Agreement may be executed in counterparts and each of such
counterparts taken together shall constitute one and the same instrument.
Dated: May 15, 2001 THE LIVINGSTON GROUP LLC
By: /s/ John Chay
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John Chay, Managing Member
/s/ John Chay
--------------------------------
John Chay
Exhibit 2
LIVINGSTON GROUP LLC
16 East Willow Avenue
Towson, Maryland 21286
May 10, 2001
VIA FEDERAL EXPRESS & FACSIMILE
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Mr. Barry A. Posner, Secretary
MIM Corporation
100 Clearbrook Road
Elmsford, New York 10523
Dear Barry:
This follows our telephone conversation yesterday in which I suggested that
MIM Corporation (the "Company") add strong, experienced leadership to its Board
of Directors to provide the Company with the proper direction and guidance.
I recommend that the following three people be nominated to serve as
directors of the Company at the upcoming 2001 Annual Meeting of Shareholders of
the Company: John Chay, Richard W. Kaplan and Joseph Lynaugh. These nominees
would replace one current member of the Board and fill the existing two
vacancies (this assumes, of course, that the size of the Board remains at
seven).
I am enclosing with this letter information regarding the nominees and
their background. Each of the nominees has consented to serve on the Board, and
his written consent is enclosed with this letter.
Finally, if the Board does not accept my recommendation, then, by the
notice given in this letter in accordance with Section 2.09 of the Company's
Bylaws, Livingston Group, LLC ("Livingston"), of which I serve as the managing
member, hereby nominates the above three persons for election as directors at
the Company's 2001 Annual Meeting of Shareholders. The nomination is predicated
on the Company maintaining a seven member Board, which currently has two
vacancies, and the Company not re-nominating one of the current directors. If
the Company intends to change the size of the Board, change the number of
nominees, or makes any other changes to the Board, Livingston reserves the right
to modify the number of its nominees.
Livingston beneficially owns 2,697,947 shares, representing approximately
13.2 % , of the Common Stock of the Corporation. Livingston's principal business
is located at 16 East Willow Avenue, Towson, Maryland 21286.
I hope we can work this out in a reasonable, prompt and responsible manner.
Sincerely,
/s/ John Chay
-------------------
John Chay
INFORMATION REGARDING NOMINEES AND LIVINGSTON
Set forth below is certain information required by Section 2.09 of the
Bylaws of MIM Corporation (the "Corporation") regarding the nomination of
persons to serve as directors of the Corporation. Livingston Group, LLC
("Livingston") has nominated John Chay, Richard W. Kaplan and Joseph Lynaugh
(collectively, the "Nominees").
PART I Information Regarding Nominees:
A. Name, Age, Business Address and Residence Address
Name Age Business Address Residence Address
---- --- ---------------- -----------------
John Chay 43 2200 Pine Hill Farms Lane 2200 Pine Hill Farms Lane
Cockeysville, MD 21030 Cockeysville, MD 21030
Richard H. Kaplan 54 Subacute Network, LLC. 1316N Asylum Ave
1979 Marcus Ave Hartford, CT 06105
Ste. 210
Lake Success, NY 12042
Joseph T. Lynaugh 61 304 Brookemere Rd. 304 Brookemere Rd.
Ridgewood, NJ 07450 Ridgewood, NJ 07450
B. Principal Occupation or Employment
Since 1999, Mr. Chay has been a private investor and has
served as a principal in Harvest Investment Group, an entity that he founded
that invests in healthcare related companies and services. He is also a
principal in the Summit Group, a developer and builder of active adult
communities. Since August 2000, Mr. Chay has also served as the managing member
of Livingston Group, LLC. In 1991, Mr. Chay founded the Healthlink Group, a
physician practice management consulting firm, and in 1993, he co-founded
NutriChem, a pharmacy specialty distribution company specializing in oncology
related services; both companies were subsequently combined. The combined
company was acquired in a series of transactions in 1994 by Phymatrix
Corporation (formerly Continuum Care Corporation), which went public in 1996.
Mr. Chay served as President of Phymatrix's specialty pharmacy division until
1998, and as a director from 1996 to 1999. Neither Harvest Investment Group nor
Summit Group is a parent, subsidiary or other affiliate of the Corporation.
Livingston Group, LLC may be deemed to be an affiliate of the Corporation based
on Livingston Group, LLC's beneficial ownership interest of approximately 13.2%
of the Corporation's common stock.
Mr. Kaplan has served as the President and CEO of Subacute
Network, LLC, a physician network management company for the past two and a half
years. Prior to that, he served for two years as the Executive Vice President of
Phymatrix Corporation, also a physician network management company. Prior to
that, he served for two years as the Executive Vice President of Advanced
Health, another network management company. Subacute Network, LLC is not a
parent, subsidiary or other affiliate of the Corporation.
Mr. Lynaugh is a private investor and serves as the Chairman
of the Board of the Resurgence Foundation, a non-profit entity. From 1996 to
1997, Mr. Lynaugh was the CEO of NYL Care, a wholly-owned subsidiary of New York
Life Insurance. Prior to that, he served as the CEO and president of Sanus
Healthplans, of which he was a co-founder in 1983.
C. Shares Owned Either Beneficially or Of Record.
As the managing member of Livingston, Mr. Chay may be deemed
to beneficially own the 2,697,947 shares of Common Stock beneficially owned by
Livingston. Mr. Chay owns no other shares of Common Stock, either beneficially
or of record.
Neither Mr. Kaplan or Mr. Lynaugh own any shares of Common
Stock.
D. Contracts, Arrangements, Understandings.
Except as to Mr. Chay, no Nominee was, within the past year, a
party to any contract, arrangements or understandings with any person with
respect to any securities of the Corporation. Mr. Chay's involvement is
described under Part II with respect to Livingston.
E. Interest of Certain Persons in Matters to be Acted Upon
Except as to Mr. Chay and Livingston, as described in Part II
hereof, none of the Nominees has been, within the past year, a party to any
contract, arrangement or understanding with any person with respect to any
securities of the Corporation, including, but not limited to joint ventures,
loan or option arrangements, puts or calls, guarantees against loss or
guarantees of profit, division of losses or profits, or the giving or
withholding of proxies.
F. Other information relating to such person that is required
to be disclosed in a solicitation of proxies for the election of directors,
or is otherwise required, pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended.
Directorships of Other Publicly Owned Companies
-----------------------------------------------
No Nominee is serving as a director of any corporation,
partnership or other entity that has a class of equity securities registered
under the Securities Exchange Act of 1934, as amended, or subject to the
requirements of 15(d) of the such Act or any company registered as an investment
company under the Investment Company Act of 1940.
Material Proceedings Adverse to the Corporation
-----------------------------------------------
To Livingston's best knowledge, and based on information
provided by the Nominees, there are no material proceedings to which any
Nominee, or any associate of any Nominee, is a party adverse to the Corporation
or any of its subsidiaries, and neither he nor any associate of his has a
material interest adverse to the Corporation or any of its subsidiaries.
-2-
Positions or Offices with the Corporation
-----------------------------------------
No Nominee holds a position or office with the Corporation.
Arrangements or Understandings with Other Persons:
-------------------------------------------------
Other than Livingston's written notice of its intent to
nominate the Nominees and each Nominee's consent to such nomination, there are
no arrangements or understandings with other persons with respect to the
nomination of the Nominees as directors.
Absence of any Family Relationships
-----------------------------------
No Nominee has any family relationship with any director or
officer of the Corporation. There is no family relationship between each Nominee
and any member of Livingston or any person who controls any member of
Livingston.
Involvement in Certain Legal Proceedings
----------------------------------------
To the best knowledge of Livingston, and based on information
provided by the Nominees:
(i) Since January 1, 1996 no petition under the Federal
bankruptcy laws or any state insolvency law has been filed by or against any
Nominee, and no receiver, fiscal agent or similar officer has been appointed by
a court for business or property of any Nominee. In addition, since January 1,
1996 no petition under the Federal bankruptcy laws or any state insolvency law
has been filed by or against, and no receiver, fiscal agent or similar officer
has been appointed by a court for business or property of, any partnership in
which a Nominee is or was a general partner, or any corporation or business
association of which a Nominee is or was an executive officer.
(ii) Since January 1, 1996, no Nominee has been convicted in a
criminal proceeding nor has he been named as the subject of any pending criminal
proceeding (excluding traffic violations or similar misdemeanors).
Absence of Certain Transactions
-------------------------------
To the best knowledge of Livingston, and based on information
provided by the Nominees, except as to the Acquisition described in Part II
hereof and related agreements:
(i) Since January 1, 2000 no Nominee nor any member of his
immediate family has had any material interest in any transaction or any series
of similar transactions to which the Corporation or any of its subsidiaries was
a party, and no Nominee nor any member of his immediate family has any material
interest in any currently proposed transaction, or series of similar
transactions to which the Corporation or any of its subsidiaries is a party.
-3-
(ii) Since January 1, 2000, each Nominee has not had any
relationship of the nature described in Item 404(b) of Regulation S-K,
promulgated by the SEC under the Securities Exchange Act of 1934, as amended.
Specifically, since January 1, 2000, each Nominee has not been an officer,
director, partner or employee of, nor has he owned (directly or indirectly) more
than 10% of the equity interest in, any of the following types of organizations:
(A) Any organization that has made or proposes to
make payments to the Corporation or any of its subsidiaries for property or
services;
(B) Any organization to which the Corporation or any
of its subsidiaries was indebted;
(C) Any organization to which the Corporation or any
of its subsidiaries has made or proposes to make payments for property or
services in excess of 5% the Corporation's gross revenues or the other entity's
gross revenues; or
(D) Any organization that provided legal services or
investment banking services to the Corporation or any of its subsidiaries.
(iii) Since January 1, 2000, no Nominee, nor any member of his
immediate family or any firm, corporation or organization of which he is an
executive officer or director or the beneficial owner of 10% or more of any
class of equity securities, nor any trust or other estate in which he has a
substantial beneficial interest or as to which he serves as a trustee or in a
similar capacity, was indebted to the Corporation or any of its subsidiaries in
excess of $60,000 at any time.
Section 16 Compliance
---------------------
None of the Nominees are required to file reports under
Section 16 of the Securities Exchange Act of 1934, as amended, with respect to
the Common Stock of the Corporation.
PART II Information Regarding Livingston:
A. Name and Address of Livingston
The name and address of Livingston is:
Livingston Group, LLC
16 East Willow Avenue
Towson, Maryland 21286
The name and address and amount of securities owned
beneficially by each of the members of Livingston are included in the Schedule
13G filed by Livingston and its members in respect of the events that occurred
on August 4, 2000. A copy of such Schedule 13G is included herewith and
incorporated herein by reference.
-4-
The members of Livingston are:
John Chay
Bruce Blake
Elizabeth Williams
Sal Rafanelli
George Brown and family:
David Brown
Christopher Brown
Kathy Noonan
Regina Brown (wife)
Mr. Bruce Blake is employed by ADIMA, a wholly owned
subsidiary of the Corporation, as President.
B. Class and Number of Shares Owned by Livingston
Livingston is the beneficial owner of 2,697,947 shares of
Common Stock, par value $0.0001 per share, of the Corporation.
C. Contracts, Arrangements and Understandings.
Livingston acquired the 2,697,947 shares of Common Stock as
the "Designated Seller" pursuant to a Purchase Agreement and exhibits dated as
of August 3, 2000 between the Corporation and American Disease Management
Associates, L.L.C., a Delaware limited liability company ("ADIMA"), Radix
Capital Investment Group, LLC, a Delaware limited liability company, Elizabeth
Williams, Bruce Blake and Sal Rafanelli. Pursuant to the Purchase Agreement, the
Corporation, through its subsidiary, MIM Health Plans, Inc., acquired all of the
issued and outstanding membership interests of ADIMA (the "Acquisition"). The
Purchase Agreement and exhibits thereto were described in a Form 8K filed by the
Corporation in respect of the Acquisition.
In connection with the Acquisition, the parties entered into
certain covenants, agreements, representations, warranties and indemnities
pursuant to the Purchase Agreement. In addition, the following agreements were
entered into:
REGISTRATION RIGHTS AGREEMENT. The Corporation and Livingston
entered into a Registration Rights Agreement dated as of August 3, 2000 (the
"Registration Agreement"). The Registration Agreement grants the Livingston,
certain demand rights with respect to registration under the 1933 Act. The
Registration Agreement also grants "piggy-back" rights to the Livingston to
participate in certain registration statements filed by the Issuer.
EMPLOYMENT AGREEMENTS. Bruce Blake, a member of Livingston,
and ADIMA, a subsidiary of the Issuer, entered into a three year employment
agreement dated August 3, 2000 pursuant to which Mr. Blake is employed as
president of ADIMA. Mr. Rafanelli and Ms. Williams also have employment
agreements with the Corporation.
-5-
Except as set forth above, there are no contracts,
arrangements, understandings or relationships with any other person with respect
to any securities of the Corporation or with respect to any future employment or
future transactions.
D. Solicitation Information
The nature, description, cost and methods of a solicitation,
if any, have not as yet been determined. The cost of any solicitation will be
borne by Livingston.
-6-
CONSENT OF PROPOSED NOMINEE
The undersigned hereby consent to be named in the proxy statement of
MIM Corporation, to be used in connection with its solicitation of proxies from
the shareholders of MIM Corporation, for use in voting at the 2001 Annual
Meeting of Shareholders of MIM Corporation, and hereby consents and agrees to
serve a director of MIM Corporation if elected at such Annual Meeting.
/s/ John Chay
Dated: May 10, 2001
CONSENT OF PROPOSED NOMINEE
The undersigned hereby consent to be named in the proxy statement of
MIM Corporation, to be used in connection with its solicitation of proxies from
the shareholders of MIM Corporation, for use in voting at the 2001 Annual
Meeting of Shareholders of MIM Corporation, and hereby consents and agrees to
serve a director of MIM Corporation if elected at such Annual Meeting.
/s/ Richard H. Kaplan
Dated: May 10, 2001
CONSENT OF PROPOSED NOMINEE
The undersigned hereby consent to be named in the proxy statement of
MIM Corporation, to be used in connection with its solicitation of proxies from
the shareholders of MIM Corporation, for use in voting at the 2001 Annual
Meeting of Shareholders of MIM Corporation, and hereby consents and agrees to
serve a director of MIM Corporation if elected at such Annual Meeting.
/s/ Joseph T. Lynaugh
Dated: May 10, 2001
Exhibit 3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
August 3. 2000, by and between American Disease Management Associates. L.L.C., a
Delaware limited liability company (the "Employer"), an indirect wholly owned
subsidiary of MIM Corporation ("Parent") and Elizabeth Williams (the
"Employee").
WHEREAS Employer and the Employee, among others, have entered into a
Purchase Agreement, dated as of August 3, 2000 (the "Purchase Agreement")
pursuant to which MIM Health Plans. Inc. will purchase all of the Employee's
membership interests in the Employer for the purchase price set forth therein.
WHEREAS, it is a condition to consummation of the Purchase Agreement
that the parties enter into this Agreement.
WHEREAS, the Employer desires to employ the Employee, and Employee
desires to be employed by the Employer, in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereto mutually agree as follows:
SECTION 1. Employment. The Employer hereby employs Employee for the
Employment Period specified in Section 2 below as Executive Vice President of
the Employer, or in such other capacity as the Employer and the Employee may
agree from time to time. The Employee hereby accepts such employment upon the
terms and conditions set forth herein and agrees to devote his time and efforts
to the performance of his duties hereunder.
SECTION 2. Employment Period The period of the Employee's employment
under this Agreement (the "Employment Period') shall commence on the date hereof
and shall end upon the earlier of (i) the 3rd anniversary of the Closing Date
(as defined in the Purchase Agreement) or (11) termination of this Agreement as
contemplated by Section 7 below.
SECTION 3. Duties. Employee shall have those duties and
responsibilities which are assigned to him by the Employer during the Employment
Period. Employee agrees to perform faithfully the duties assigned to him to the
best of his ability.
SECTION 4. Compensation. (a) As compensation for all services rendered
and to be rendered pursuant to this Agreement, the Employer agrees to pay the
Employee (i) from the date hereof through December 31, 2000 an annual salary of
$122,796 (the "2000 Base Salary") and (ii) from and after January 1, 2001, an
annual salary of $200,000 (the "Ongoing Base Salary" and together with the 2000
Base Salary, the "Base Salary"). The Base Salary shall accrue and be payable in
accordance with the payroll practices of the Employer as in effect from time to
time, but not less than bi-monthly. The Employer shall have the right to deduct
from any compensation paid to Employee hereunder all taxes and other amounts
which may be required to be deducted or withheld by law (including, but not
limited to, income tax withholding, social security payments and garnishments),
whether such laws are now in effect or become effective after the date of this
Agreement.
(b) During the Employment Period, the Employee shall be entitled to
participate in the Parent's 1996 Amended and Restated Stock Incentive Plan (the
"Plan") and the 1999 Total Compensation Program for Key Employees (collectively,
the Bonus Program"), at the participation levels set forth in Section 4(c) and
4(d) below, and at such additional participation levels as may be determined
from time to time by the Chief Executive Officer of Parent or Parent's Board of
Directors or any committee thereof.
(c) Upon execution and delivery of this Agreement and a Stock Option
Agreement between the Employee and the Parent (the "Stock Option Agreement"),
the Employee shall be granted and shall receive non-qualified stock options
("Options") to purchase 50,000 shares of common stock, par value $0.0001 per
share, of Parent ("Common Stock"), at a price per share equal to $1.9375, which
is the closing sales price per share of the Common Stock on the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") on
the third business day prior to the date hereof. Subject to Section 7 hereof and
the applicable stock option award agreement (i) 16,667 of such Options shall
vest and become exercisable on each of the first and second anniversaries of the
date hereof, and (ii) the remaining 16,666 Options shall vest and become
exercisable, on the third anniversary of the date hereof. The Options shall be
subject to the terms of the Stock Option Agreement and the Plan.
(d) Upon execution and delivery of this Agreement and a Performance
Shares Agreement between the Employee and Parent (the "Performance Share
Agreement"), the Employee shall be granted and shall receive 25,000 shares of
Common Stock (the "Performance Shares") which shall be subject to certain
limitations and restrictions as set forth in the Performance Shares Agreement
and the Plan.
(e) The Company shall pay Employee $750 per month as an automobile
allowance.
SECTION 5. Expenses. The Employer shall promptly or within 30 days of
receipt of a reimbursement report from the Employee reimburse the Employee for
all reasonable expenses incurred by the Employee on behalf of the Employer or in
connection with the Employee's performance of his duties hereunder; provided,
that the Employee submits proof of such expenses, with the properly completed
forms and supporting receipts and other documentation as prescribed by the
Company, in accordance with the policies applicable to employees of the
Employer.
SECTION 6. Employment Benefits. During the Employment Period, Employee
shall be entitled to such other benefits as are customarily accorded to the
employees of the Parent, including, but not limited to, the right to participate
in employee benefit programs maintained by the Employer such as group health,
life, and disability insurance pursuant to the terms of those plans (the "New
Benefits") or, at Employee's election (to the extent available), such benefits
as Employee was entitled to receive from Employer immediately prior to the date
hereof (the "Existing Benefits"); provided such Employee pays Parent the amount
by which the cost of the Existing Benefits exceeds the cost of the New Benefits.
-2-
SECTION 7. Termination.
(a) This Agreement may be terminated by written notice prior to the
expiration of the Employment Period by the Employer at any time. If such
termination is with Cause (as such term is hereinafter defined), all of the
Employee's rights to compensation and benefits under Sections 4 and 6 above
shall terminate upon such termination, except amounts accrued in respect of
periods prior to such termination. If such termination is by the Employer
without Cause. the Employer shall pay Employee as severance pay, the remaining
Base Salary which would other-wise have been paid to Employee from the date of
such termination to the third anniversary of the Closing Date, less deductions
and withholdings required by law. The term "Cause" shall mean (A) if Employee is
convicted of, pleads guilty to, or confesses to any felony or any act of fraud,
misappropriation, misrepresentation or embezzlement, (B) if Employee has engaged
in a dishonest act to the damage or prejudice of the Employer, or in conduct or
activities materially damaging to the property, business, or reputation of the
Employer or (C) if Employee fails to comply with the terms of this Agreement
(other than Section 8 hereof), and within ten (10) days after written notice
from the Company of such failure, Employee has not corrected such failure or,
having once received such notice of failure and having so corrected such
failure, Employee at any time thereafter again so fails or (D) if Employee
violates any of the provisions contained in Section 8 of this Agreement;
(b) If the Employee shall die during the Employment Period. this
Agreement shall terminate, and no further compensation shall be payable to
Employee or his estate hereunder, except unpaid accrued compensation.
(c) If the Employee is unable to discharge his duties hereunder for a
period of six consecutive months by reason of physical or mental illness,
injury, or incapacity, the Employer may, by written notice to the Employee,
terminate this Agreement and no further compensation shall be payable to
Employee hereunder.
(d) If the Employee (i) is terminated without Cause and is entitled to
severance pay pursuant to Section 7(a) of this Agreement and (ii) violates any
of the restrictive covenants set forth in Section 8 of this Agreement, the
Employer shall have no further obligations to make any severance payments to
such Employee pursuant to Section 7(a) of this Agreement; provided that
notwithstanding the foregoing, the Employee's obligations to comply with all of
the restrictive covenants set forth in Section 8 of this Agreement shall
continue in effect.
(e) Notwithstanding anything to the contrary, the consequences of
termination, death or disability, as they relate to the Options and the
Performance Shares shall be governed by the Plan, and the Stock Option Agreement
and the Performance Shares Agreement, respectively.
SECTION 8. Proprietary Information and Restrictive Covenants.
All of the provisions set forth in Section 6.04 of the Purchase
Agreement (including, without limitation, all covenants, agreements, rights and
obligations set forth therein) are incorporated by reference herein in their
entirety and shall be of full force and effect, as if stated herein in their
entirety.
-3-
SECTION 9. Representations by Employee. Employee hereby represents and
warrants to the Employer that (i) the Employee's execution and delivery of this
Agreement and his performance of his duties and obligations hereunder will not
conflict with, or cause a default under, or give any party a right to damages
under, or to terminate, any other agreement to which Employee is a party or by
which he is bound, and (ii) there are no agreements or understandings that would
make unlawful Employee's execution or delivery of this Agreement or his
employment hereunder.
SECTION 10. Notices. All notices, requests, demands, and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given, made, and received only when personally
delivered, sent by electronically confirmed facsimile transmission, delivered by
Federal Express or other nationally recognized courier service, or two days
after having been deposited in the United States mail, certified mail, postage
prepaid, return receipt requested, addressed as set forth below:
in the case of the Employer at:
American Disease Management Associates, L.L.C.
c/o MIM Corporation
100 Clearbrook Road
Elmsford, New York 10523
Facsimile (914) 460-1670
Attention: Barry Posner
with a copy to:
King & Spalding
1185 Avenue of the Americas
New York, New York 1036
Facsimile (212) 556-2142
Attention: E. William Bates, II
and in the case of the Employee, at:
Elizabeth Williams
c/o American Disease Management Associates, L.L.C.
5 North Regent Street, Suite 506
Livingston, New Jersey 07039
Either party may designate a different address by giving notice of change of
address in the manner provided above.
SECTION 11. Waiver. No waiver or modification in whole or in part of
this Agreement, or any term or condition hereof, shall be effective against any
party unless in writing and duly signed by the party sought to be bound. Any
waiver or any breach of any provisions hereof or any right or power by any party
on one occasion shall not be construed as a waiver of, or a bar to, the exercise
of such right or power on any other occasion or as a waiver of any subsequent
breach.
-4-
SECTION 12. Binding Effect, Successors. This Agreement shall be binding
upon and shall inure to the benefit of the Employer and its successors and
assigns, and shall inure to the benefit of and be binding upon the Employee and
his executors. administrators, heirs. and legal representatives. This Agreement
may not be transferred, sold or assigned; provided, however, that the Employer
may assign any of its rights and delegate any of its obligations hereunder, in
whole or in part, to an Affiliate (as defined in the Purchase Agreement) of
Employer without Employee's consent. Because the Employee's duties and services
hereunder are special, personal, and unique in nature, the Employee may not
transfer, sell or otherwise assign his rights, obligations, or benefits under
this Agreement; any purported assignment by the Employee in violation hereof
shall be null and void.
SECTION 13. Controlling Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed therein, exclusive of the conflict of laws
provisions thereof.
SECTION 14. Severability. It Is the desire and intent of parties that
the terrns and conditions of this agreement be enforced to the fullest extent
possible. If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect or impair
the validity or enforceability of the remaining provisions of this Agreement,
which shall remain in full force and effect and the parties hereto shall
continue to be bound thereby.
SECTION 15. Entire Agreement. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and shall
supersede all previous agreements between the parties, whether written or oral,
with respect to the subject matter hereof. This Agreement cannot be modified,
altered, or amended except by a writing signed by each of the parties hereto.
-5-
IN WITNESS WHEREOF, the Employer and the Employee have executed this
Agreement as of the day and year first above written.
EMPLOYER:
American Disease Management Assocciates. L.L.C.
By: /s/ Barry Posner
----------------
Name:
Title:
EMPLOYEE:
By: /s/ Elizabeth Williams
----------------------
Elizabeth Williams
-6-
Exhibit 4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement ")is entered into as of
August 3, 2000, by and between American Disease Management Associates, L.L.C., a
Delaware limited liability company (the "Employer"), an indirect wholly owned
subsidiary of MIM Corporation ("Parent"), and Sal Rafanelli (the "Employee").
WHEREAS Employer and the Employee, among others, have entered into a
Purchase Agreement, dated as of August 3, 2000 (the "Purchase Agreement")
pursuant to which MIM Health Plans, Inc. will purchase all of the Employee's
membership interests in Employer for the purchase price set forth therein.
WHEREAS, it is a condition to consummation of the Purchase Agreement
that the parties enter into this Agreement.
WHEREAS, the Employer desires to employ the Employee, and Employee
desires to be employed by the Employer, in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereto mutually agree as follows:
SECTION 1. Employment. The Employer hereby employs Employee for the
Employment Period specified in Section 2 below as Vice President of the
Employer, or in such other capacity as the Employer and the Employee may agree
from time to time. The Employee hereby accepts such employment upon the terms
and conditions set forth herein and agrees to devote his time and efforts to the
performance of this duties hereunder.
SECTION 2. Employment Period. The period of the Employee's employment
under this Agreement (the "Employment Period") shall commence on the date hereof
and shall end upon the earlier of (i) the 3rd anniversary of the Closing Date
(as defined in the Purchase Agreement) or (ii) termination of this Agreement as
contemplated by Section 7 below.
SECTION 3. Duties. Employee shall have those duties and
responsibilities which are assigned to him by the Employer during the Employment
Period. Employee agrees to perform faithfully the duties assigned to him to the
best of his ability.
SECTION 4. Compensation. (a) As compensation for all services rendered
and to be rendered pursuant to this Agreement, the Employer agrees to pay the
Employee (i) from the date hereof through December 31, 2000, an annual salary of
$108,660 (the "2000 Base Salary") and (ii) from and after January 1, 2001, an
annual salary of $135,000 (the "Ongoing Base Salary") and together with the 2000
Base Salary, the "Base Salary"). The Base Salary shall accrue and be payable in
accordance with the payroll practices of the Employer as in effect from time to
time, but not less than bi-monthly. The Employer shall have the right to deduct
from any compensation paid to Employee hereunder all taxes and other amounts
which may be required to be deducted or withheld by law (including, but not
limited to, income tax withholding, social security payments and garnishments),
whether such laws are now in effect or become effective after the date of this
Agreement.
(b) During the Employment Term. the Employee shall be entitled to
participate in the Parent's 1996 Amended and Restated Stock Incentive Plan (the
"Plan") and the 1999 Total Compensation Program for Key Employees (collectively.
the "Bonus Program"), at the participation levels set forth in Section 4(c) and
4(d) below, and at such additional participation levels as may be determined
from time to time by the Chief Executive Officer of Parent or Parent's Board of
Directors or any committee thereof
(c) Upon execution and delivery of this Agreement and a Stock Option
Agreement between the Employee and the Parent (the "Option Agreement"), the
Employee shall be granted and shall receive non-qualified stock options
("Options") to purchase 40,000 shares of common stock, par value $0.0001 per
share, of Parent ("Common Stock"), at a price per share equal to $1.9375, which
is the closing sales price per share of the Common Stock on the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") on
the third business day prior to the date hereof Subject to Section 7 hereof and
the applicable stock option award agreement (1) 13,333 of such Options shall
vest and become exercisable on each of the first and second anniversaries of the
date hereof, and (ii) the remaining 13,334 Options shall vest and become
exercisable, on the third anniversary of the date hereof. The Options shall be
subject to the terms of the Stock Option Agreement and the Plan.
(d) Upon execution and delivery of this Agreement and a Performance
Shares Agreement between the Employee and Parent (the "Performance Share
Agreement"), the Employee shall be granted and shall receive 20,000 shares of
Common Stock (the "Performance Shares") which shall be subject to certain
limitations and restrictions as set forth in the Performance Shares Agreement
and the Plan.
(e) The Company shall pay Employee $500 per month as an automobile
allowance.
SECTION 5. Expenses. The Employer shall promptly or within 30 days of
receipt of a reimbursement report from the Employee reimburse the Employee for
all reasonable expenses incurred by the Employee on behalf of the Employer or in
connection with the Employee's performance of his duties hereunder; provided,
that the Employee submits proof of such expenses, with the properly completed
forms and supporting receipts and other documentation as prescribed by the
Company, in accordance with the policies applicable to employees of the
Employer.
SECTION 6. Employment Benefits. During the Employment Period, Employee
shall be entitled to such other benefits as are customarily accorded to the
employees of Parent, including, but not limited to, the right to participate in
employee benefit programs maintained by the Parent such as group health, life,
and disability insurance pursuant to the terms of those plans (the "New
Benefits") or, at Employee's election (to the extent available), such benefits
as Employee was entitled to receive from Employer immediately prior to the date
hereof (the "Existing Benefits"); provided such Employee pays Parent the amount
by which the cost of the Existing Benefits exceeds the cost of the New Benefits.
-2-
SECTION 7. Termination.
(a) This Agreement may be terminated by written notice prior to the
expiration of the Employment Period by the Employer at any time. If such
termination is with Cause (as such term is hereinafter defined), all of the
Employee's rights to compensation and benefits under Sections 4 and 6 above
shall terminate upon such termination. except amounts accrued in respect of
periods prior to such termination. If such termination is by the Employer
without Cause, the Employer shall pay Employee as severance pay, the remaining
Base Salary which would otherwise have been paid to Employee from the date of
such termination to the third anniversary of the Closing Date. less deductions
and withholdings required by law. The term "Cause" shall mean (A) if Employee is
convicted of, pleads guilty to, or confesses to any felony or any act of fraud,
misappropriation, misrepresentation or embezzlement, (B) if Employee has engaged
in a dishonest act to the damage or prejudice of the Employer, or in conduct or
activities materially damaging to the property, business, or reputation of the
Employer or (C) if Employee fails to comply with the terms of this Agreement
(other than Section 8 hereof), and within ten (10) days after written notice
from the Company of such failure, Employee has not corrected such failure or,
having once received such notice of failure and having so corrected such
failure, Employee at any time thereafter again so fails or (D) if Employee
violates any of the provisions contained in Section 8 of this Agreement;
(b) If the Employee shall die during the Employment Period, this
Agreement shall terminate, and no further compensation shall be payable to
Employee or his estate hereunder, except unpaid accrued compensation.
(c) If the Employee is unable to discharge his duties hereunder for a
period of six consecutive months by reason of physical or mental illness,
injury, or incapacity, the Employer may, by written notice to the Employee,
terminate this Agreement and no further compensation shall be payable to
Employee hereunder.
(d) If the Employee (i) is terminated without Cause and is entitled to
severance pay pursuant to Section 7(a) of this Agreement and (ii) violates any
of the restrictive covenants set forth in Section 8 of this Agreement, the
Employer shall have no further obligations to make any severance payments to
such Employee pursuant to Section 7(a) of this Agreement; provided that
notwithstanding the foregoing, the Employee's obligations to comply with all of
the restrictive covenants set forth in Section 8 of this Agreement shall
continue in effect.
(e) Notwithstanding anything to the contrary, the consequences of
termination, death or disability, as they relate to the Options and the
Performance Shares shall be governed by the Plan, and the Stock Option Agreement
and the Performance Shares Agreement, respectively.
SECTION 8. Proprietary Information and Restrictive Covenants.
All of the provisions set forth in Section 6.04 of the Purchase
Agreement (including, without limitation, all covenants, agreements, rights and
obligations set forth therein) are incorporated by reference herein in their
entirety and shall be of full force and effect, as if stated herein in their
entirety,
-3-
SECTION 9. Representations by Employee. Employee hereby represents and
warrants to the Employer that (i) the Employee's execution and delivery of this
Agreement and his performance of his duties and obligations hereunder will not
conflict with, or cause a default under, or give any party a right to damages
under, or to terminate, any other agreement to which Employee is a party or by
which he is bound, and (ii) there are no agreements or understandings that would
make unlawful Employee's execution or delivery of this Agreement or his
employment hereunder.
SECTION 10. Notices. All notices, requests, demands, and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given. made, and received only when personally
delivered, sent by electronically confirmed facsimile transmission, delivered by
Federal Express or other nationally recognized courier service, or two days
after having been deposited in the United States mail, certified mail, postage
prepaid, return receipt requested, addressed as set forth below:
in the case of the Employer at:
American Disease Management Associates, L.L.C.
c/o MIM Corporation
100 Clearbrook Road.
Elmsford, New York 10523
Facsimile (914) 460-1670
Attention: Barry Posner
with a copy to:
King & Spalding
118 5 Avenue of the Americas
New York, New York 10036
Facsimile (212) 556-2142
Attention: E. William Bates, II
and, in the case of the Employee, at:
Sal Rafanelli
c/o American Disease Management Associates, L.L.C.
5 North Regent Street, Suite 506
Livingston, New Jersey 07039
Either party may designate a different address by giving notice of change of
address in the manner provided above.
SECTION 11. Waiver. No waiver or modification in whole or in part of
this Agreement, or any term or condition hereof, shall be effective against any
party unless in writing and duly signed by the party sought to be bound. Any
waiver or any breach of any provisions hereof or any right or power by any party
on one occasion shall not be construed as a waiver of, or a bar to, the exercise
of such right or power on any other occasion or as a waiver of any subsequent
breach.
-4-
SECTION 12. Binding Effect, Successors. This Agreement shall be binding
upon and shall inure to the benefit of the Employer and its successors and
assigns. and shall inure to the benefit of and be binding upon the Employee and
his executors. administrators, heirs. and legal representatives. This Agreement
may not be transferred, sold or assigned; provided, however, that the Employer
may assign any of its rights and delegate any of its obligations hereunder, in
whole or in part, to an Affiliate (as defined in the Purchase Agreement) of
Employer without Employee's consent. Because the Employee's duties and services
hereunder are special, personal, and unique in nature, the Employee may not
transfer, sell or otherwise assign his rights, obligations, or benefits under
this Agreement; any purported assignment by the Employee in violation hereof
shall be null and void.
SECTION 13. Controlling Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed therein, exclusive of the conflict of laws
provisions thereof.
SECTION 14. Severability. It is the desire and intent of parties that
the terms and conditions of this agreement be enforced to the fullest extent
possible. If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect or impair
the validity or enforceability of the remaining provisions of this Agreement,
which shall remain in full force and effect and the parties hereto shall
continue to be bound thereby.
SECTION 15. Entire Agreement. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and shall
supersede all previous agreements between the parties, whether written or oral,
with respect to the subject matter hereof. This Agreement cannot be modified,
altered, or amended except by a writing signed by each of the parties hereto.
-5-
IN WITNESS WHEREOF. the Employer and the Employee have executed this
Agreement as of the day and year first above written.
EMPLOYER:
American Disease Management Associates. L.L.C.
By: /s/ Barry Posner
----------------
Name:
Title:
EMPLOYEE:
By:/s/ Sal Rafanelli
-----------------
Sal Rafanelli
-6-