As filed with the Securities and Exchange Commission on May 27, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
INNOVEX, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-1223933
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
530 11TH AVENUE SOUTH
HOPKINS, MINNESOTA 55343-9904
(Address of Principal Executive Offices and zip code)
----------------------------
INNOVEX, INC.
1994 STOCK OPTION PLAN
(Full title of the Plan)
----------------------------
Thomas W. Haley Copy to:
Chief Executive Officer Charles P. Moorse
Innovex, Inc. Kristin L. Johnson
530 11th Avenue South Lindquist & Vennum P.L.L.P.
Hopkins, MN 55343-9904 4200 IDS Center
(612) 938-4155 80 South Eighth Street
(Name, address, including zip code and Minneapolis, MN 55402
telephone number of agent for service) (612) 371-3211
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Securities Maximum Maximum
to be Registered Amount Offering Aggregate Amount of
to be Price Offering Registration
Registered Per Share Price Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 600,000 shares(2) $13.50(1) $8,100,000(1) $2,251.80
$.04 par value to be issued
pursuant to the Innovex, Inc.
1994 Stock Plan
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</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) and based upon the average of the high
and low prices of the Company's Common Stock on the Nasdaq National
Market on May 24, 1999.
(2) 200,000 shares were registered on Form S-8 (No. 33-59035) on May 2,
1995 (adjusted to 300,000 shares after a 3 for 2 stock split on May 31,
1995. An additional 300,000 shares were registered on Form S-8 on
August 13, 1996 (No. 333-10045) (adjusted in the aggregate to 1,200,000
shares upon a 2-for-1 split on December 23, 1996) and 600,000 shares
are being registered herewith.
<PAGE>
INCORPORATION OF CONTENTS OF REGISTRATION STATEMENT
BY REFERENCE
A Registration Statement on Form S-8 (File No. 33-59035) was filed with
the Securities and Exchange Commission on May 2, 1995 covering the registration
of 200,000 shares (adjusted to 300,000 shares after a 3 for 2 stock split on May
31, 1995) initially authorized for issuance under the Company's 1994 Stock
Option Plan (the "Plan"). A filing fee of $1,681.03 was paid at the time that
Registration Statement was filed. An additional Registration statement Form S-8
(file No. 333-10045) was filed with the Securities and Exchange Commission on
August 13, 1996 covering the registration of an amendment to increase authorized
shares by 300,000 (adjusted in the aggregate to 1,200,000 shares upon a 2-for-1
stock split on December 23, 1996). A filing fee of $1,681.03 was paid at the
time the S-8 Registration statement was filed. Pursuant to General Instruction E
of Form S-8 and Rule 429, this Registration Statement is being filed to register
an additional 600,000 shares authorized under the Plan. An amendment to the Plan
to increase the reserved and authorized number of shares under the Plan by
600,000 was authorized by the Company's Board of Directors on October 23, 1998
and such amendment was approved by the Company's shareholders on January 20,
1999. This Registration Statement should also be considered a post-effective
amendment to the prior Registration Statements. The contents of the prior
Registration Statements are incorporated herein by reference.
PART I
Pursuant to the Note to Part I of Form S-8, the information required by
Items 1 and 2 of Form S-8 is not filed as a part of this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference herein:
(a) The Annual Report of the Company on Form 10-K for the fiscal year
ended September 30, 1998.
(b) The Definitive Proxy Statement dated December 21, 1998 for the 1999
Annual Meeting of Shareholders held on January 20, 1999.
(c) The Quarterly Reports of the Company on Form 10-Q for the quarters
ended December 31, 1998 and March 31, 1999.
(d) The description of the Company's Common Stock as set forth in the
Company's Form 8-A Registration Statement dated January 29, 1985, which became
effective as of July 31, 1985 (Registration No. 0-13143), including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
2
<PAGE>
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Articles of Incorporation. The Company's Articles of Incorporation
provides that no director of the corporation may be personally liable to the
Company or its shareholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its shareholders; (ii) for acts or omissions not in
good faith or that involve intentional misconduct or a knowing violation of law;
(iii) under section 302A.559 or 80A.23 of Minnesota Statutes; (iv) for any
transaction from which the director derived any improper personal benefit; or
(v) for any act or omission occurring prior to February 29, 1988 (the effective
date of the indemnification provisions in the Company's Articles of
Incorporation).
Statutory Provisions. Section 302A.521 of the Minnesota Business
Corporation Act provides that a corporation shall indemnify a person made or
threatened to be made a party to a proceeding by reason of the former or present
official capacity of the person against judgments, penalties, fines, including,
without limitation, excise taxes assessed against the person with respect to an
employee benefit plan, settlements, and reasonable expenses, including
attorneys' fees and disbursements, incurred by the person in connection with the
proceeding, if, with respect to the acts or omissions of the person complained
of in the proceeding, the person:
(1) Has not been indemnified by another organization or
employee benefit plan for the same judgments,
penalties, fines, including, without limitation,
excise taxes assessed against the person with respect
to an employee benefit plan, settlements, and
reasonable expenses, including attorneys' fees and
disbursements, incurred by the person in connection
with the proceeding with respect to the same acts or
omissions;
(2) Acted in good faith;
(3) Received no improper personal benefit and section
302A.255 (Director Conflicts of Interest), if
applicable, has been satisfied;
(4) In the case of a criminal proceeding, had no
reasonable cause to believe the conduct was unlawful;
and
(5) In the case of acts or omissions occurring in the
official capacity described in subdivision 1,
paragraph (c), clause (1) or (2), reasonably believed
that the conduct was in the best interests of the
corporation, or in the case of acts or omissions
occurring in the official capacity described in
subdivision 1, paragraph (c), clause (3), reasonably
believed that the conduct was not opposed to the best
interests of the corporation. If the person's acts or
omissions complained of in the proceeding relate to
conduct as a director, officer, trustee, employee, or
agent of an employee benefit plan, the conduct is not
considered to be opposed to the best interests of the
corporation if the person reasonably believed that
the conduct was in the best interests of the
participants or beneficiaries of the employee benefit
plan.
Item 7. Exemption from Registration Claimed.
3
<PAGE>
Not applicable.
Item 8. Exhibits.
Exhibit
- -------
4.1 Innovex, Inc. 1994 Stock Plan, as amended
5.1 Opinion of Lindquist & Vennum P.L.L.P.
23.1 Consent of Lindquist & Vennum P.L.L.P. (included in Exhibit 5.1)
23.2 Consent of Grant Thornton LLP, independent certified public accountants
24.1 Power of Attorney (set forth on the signature page hereof)
- ---------------------
4
<PAGE>
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a fundamental
change in the information in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
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)
under the Securities Act of 1933 if, in the aggregate, the
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) Include any additional or changed material
information on the plan of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers, and controlling
persons of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the small business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer 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 small
business issuer will, unless in the opinion of its counsel 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 Act and will be governed by the final adjudication of such
issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hopkins, State of Minnesota, on May 27, 1999.
INNOVEX, INC.
By /s/ Thomas W. Haley
------------------------------------------------
Thomas W. Haley, Chief Executive Officer
POWER OF ATTORNEY
The undersigned officers and directors of Innovex, Inc. hereby
constitute and appoint Thomas W. Haley and Douglas W. Keller, or either of them,
with power to act one without the other, our true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for us and in our
stead, in any and all capacities to sign any and all amendments (including
post-effective amendments) to this Registration Statement and all documents
relating thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing necessary or advisable 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 said
attorney-in-fact and agent, or his 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 registration statement has been signed below by the following persons on
May 27, 1999 in the capacities indicated.
Signature
- ---------
/s/ Thomas W. Haley /s/ Bernt M. Tessem
- -------------------------------------------- ---------------------------
Thomas W. Haley, Chairman of the Board Bernt M. Tessem, Director
and Chief Executive Officer (Principal
Executive Officer) and Director
/s/ Douglas W. Keller /s/ Gerald M. Bestler
- -------------------------------------------- ---------------------------
Douglas W. Keller, Vice President, Finance Gerald M. Bestler, Director
/s/ Frank L. Farrar
---------------------------
Frank L. Farrar, Director
/s/ William P. Murnane /s/ Michael C. Slagle
- -------------------------------------------- ---------------------------
William P. Murnane, President, Chief Michael C. Slagle, Director
Operating Officer and Director
/s/ William J. Miller /s/ Elick Eugene Hawk
- -------------------------------------------- ---------------------------
William J. Miller, Director Elick Eugene Hawk, Director
6
Exhibit 4.1
INNOVEX, INC.
1994 STOCK OPTION PLAN, AS AMENDED
1. Purpose. The purpose of the Innovex, Inc. 1994 Stock Option Plan
is to provide a continuing, long-term incentive to selected eligible officers,
key employees and consultants of Innovex, Inc. (the "Corporation") and of any
subsidiary corporation of the Corporation (a "Subsidiary"), as herein defined;
to provide a means of rewarding outstanding performance; and to enable the
Corporation to maintain a competitive position to attract and retain key
personnel necessary for continued growth and profitability.
2. Definitions. The following words and phrases as used herein
shall have the meanings set forth below:
2.1 "Board" shall mean the Board of Directors of the Corporation.
2.2 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
2.3 "Committee" shall mean the Compensation Committee of the Board,
if any, or such other committee of the Board as may be designated by the Board,
from time to time, for the purpose of administering this plan as contemplated by
Article 4 hereof.
2.4 "Common Stock" shall mean the common stock, $.04 par value, of
the Corporation.
2.5 "Corporation" shall mean Innovex, Inc., a Minnesota
corporation.
2.6 "Fair Market Value" of any security on any given date shall be
determined by the Committee as follows: (a) if the security is listed for
trading on one or more national securities exchanges (including the NASDAQ
National Market System), the mean of the highest and lowest sales price on such
exchange on the date in question, or if such security shall not have been traded
on such exchange on such date, the mean of the highest and lowest sales price on
such exchange on the first day prior thereto on which such security was so
traded; or (b) if the security is not listed for trading on a national
securities exchange (including the NASDAQ National Market System) but is traded
in the over-the-counter market, the mean of the highest and lowest bid prices
for such security on the date in question, or if there are no such bid prices
for such security on such date, the mean of the highest and lowest bid prices on
the first day prior thereto on which such prices existed; or (c) if neither (a)
nor (b) is applicable, by any means deemed fair and reasonable by the Committee,
which determination shall be final and binding on all parties.
2.7 "ISO" shall mean any stock option granted pursuant to this Plan
as an "incentive stock option" within the meaning of Section 422 of the Code.
2.8 "NQO" shall mean any stock option granted pursuant to this Plan
which is not an ISO.
2.9 "Option" shall mean any stock option granted pursuant to this
Plan, whether an ISO or an NQO.
7
<PAGE>
2.10 "Optionee" shall mean any person who is the holder of an
Option granted pursuant to this Plan.
2.11 "Plan" shall mean this 1994 Stock Option Plan of the
Corporation.
2.12 "Subsidiary" shall mean any corporation which at the time
qualifies as a subsidiary of the Corporation under Section 424(f) of the Code.
3. Shares Available Under Plan. The number of shares which may be
issued pursuant to options granted under this Plan shall not exceed 1,800,000*
shares of the Common Stock of the Corporation; provided, however, that shares
which become available as a result of canceled, unexercised, lapsed or
terminated options granted under this Plan shall be available for issuance
pursuant to options subsequently granted under this Plan. The shares issued upon
exercise of options granted under this Plan may be authorized and unissued
shares or shares previously acquired or to be acquired by the Corporation. In
the event of any merger, reorganization, consolidation, recapitalization, stock
dividend, other change in corporate structure affecting the Common Stock, or
spin-off or other distribution of assets to shareholders, such substitution or
adjustment shall be made in the aggregate number of shares reserved for issuance
under the Plan, in the number and option price of shares subject to outstanding
options granted under the Plan as may be determined to be appropriate by the
Committee, in its sole discretion, provided that the number of shares subject to
any award shall always be a whole number.
4. Administration.
4.1 The Plan will be administered by the Board, or at the Board's
discretion, by the Committee. Other than references in this Section 4.1,
references to the "Committee" in this Plan shall be deemed to refer to the Board
where the Board has not designated a Committee to administer the Plan.
4.2 The Committee will have plenary authority, subject to
provisions of the Plan, to determine when and to whom options will be granted,
the term of each Option, the number of shares covered by it, the participation
by the Optionee in other plans, and any other terms or conditions of each
Option. The Committee shall determine with respect to each grant of an Option
whether a participant shall receive an ISO or an NQO. The number of shares, the
term and the other terms and conditions of a particular kind of Option need not
be the same, even as to options granted at the same time. The Committee's
recommendations regarding option grants and terms and conditions thereof will be
conclusive.
4.3 The Committee will have the sole responsibility for construing
and interpreting the Plan, for establishing and amending any rules and
regulations as it deems necessary or desirable for the proper administration of
the Plan, and for resolving all questions arising under the Plan. Any decision
or action taken by the Committee arising out of or about the construction,
administration, interpretation and effect of the Plan and of its rules and
regulations will, to the extent permitted by law, be within its absolute
discretion, except as otherwise specifically provided herein, and will be
conclusive and binding on all Optionees, all successors, and any other person,
whether that person is claiming under or through any Optionee or otherwise.
- ---------------------------
*200,000 shares, as adjusted to 300,000 shares upon a 3-for-2 stock split
on May 31, 1995, increased by 300,000 shares as approved by the Board on
November 30, 1995 and the shareholders on January 23, 1996, adjusted in the
aggregate to 1,200,000 shares upon a 2-for-1 stock split on November 30,
1996, increased by 600,000 shares as approved by the Board on October 23,
1998 and the shareholders on January 20, 1999.
8
<PAGE>
4.4 No member of the Committee will be liable, in the absence of
bad faith, for any act or omission with respect to his services on the
Committee. Service on the Committee will constitute service as a member of the
Board, so that the members of the Committee will be entitled to indemnification
and reimbursement as Board members pursuant to its Bylaws.
4.5 The Committee will regularly inform the Board as to its actions
with respect to all options granted under the Plan and the terms and conditions
and any such options in a manner, at any times, and in any form as the Board may
reasonably request.
5. Participants.
5.1 Participation in this Plan shall be limited to key personnel of
the Corporation or of a Subsidiary, who are salaried employees of the
Corporation or of a Subsidiary and to officers and consultants.
5.2 Subject to other provisions of this Plan, Options may be
granted to the same participants on more than one occasion.
5.3 The Committee's determination under the Plan including, without
limitation, determination of the persons to receive options, the form, amount
and type of such options, and the terms and provisions of Options need not be
uniform and may be made selectively among otherwise eligible participants,
whether or not the participants are similarly situated. Consultants shall
receive only NQOs which shall be subject to the same terms and provisions as are
then in effect with respect to granting of NQOs to officers and employees of the
Company, except that the term of each such option shall expire upon the earlier
of (i) five years, or (ii) such other time as the Committee shall determine.
Subject to the foregoing, all provisions of this Plan not inconsistent with the
foregoing shall apply to NQOs granted to consultants.
6. Terms and Conditions.
6.1 Each Option granted under the Plan shall be evidenced by a
written agreement, which shall be subject to the provisions of this Plan and to
such other terms and conditions as the Corporation may deem appropriate.
6.2 Each Option agreement shall specify the period for which the
Option thereunder is granted (which in no event shall exceed ten years from the
date of the grant for any NQO or any ISO subject to the pricing requirements of
Section 6.3(a) hereof and five years from the date of grant for any ISO subject
to the pricing requirements of Section 6.3(b) hereof) and shall provide that the
Option shall expire at the end of such period.
6.3 The exercise price per share shall be determined by the
Committee at the time any Option is granted. The exercise price of any ISO
granted pursuant to the Plan shall be determined as follows:
(a) For employees who do not own stock possessing more
than ten percent (10%) of the total combined voting power of
all classes of stock of the Corporation or of any Subsidiary,
the ISO exercise price per share shall not be less than one
hundred percent (100%) of Fair Market Value of the Common
Stock of the Corporation on the date the Option is granted, as
determined by the Committee.
(b) For employees who own stock possessing more than ten
percent (10%) of the total combined voting power of all
classes of stock of the Corporation or of any Subsidiary, the
ISO
9
<PAGE>
exercise price per share shall not be less than one hundred
ten percent (110%) of the Fair Market Value of the Common
Stock of the Corporation on the date the option is granted, as
determined by the Committee.
6.4 The aggregate Fair Market Value (determined as of the time the
Option is granted) of the Common Stock with respect to which an ISO under this
Plan or any other plan of the Corporation or its Subsidiaries is exercisable for
the first time by an Optionee during any calendar year shall not exceed
$100,000.
6.5 An Option shall be exercisable at such time or times, and with
respect to such minimum number of shares, as may be determined by the Committee
at the time of the grant; provided, however, that the Committee may, in its
discretion, accelerate the exercise date for any unexercisable options when the
Committee deems such action to be appropriate under the circumstances. The
Option agreement may require, if so determined by the Committee, that no part of
the Option may be exercised until the Optionee shall have remained in the employ
of the Corporation or of a Subsidiary for such period after the date of the
Option as the Committee may specify.
6.6 The Corporation may prescribe the form of legend which shall be
affixed to the stock certificate representing shares to be issued and the shares
shall be subject to the provisions of any repurchase agreement or other
agreement restricting the sale or transfer thereof. Such agreements or
restrictions shall be noted on the certificate representing the shares to be
issued.
6.7 An Optionee may not be granted in any fiscal year one or more
Options to purchase an aggregate total of more than 100,000 shares of common
stock. This 100,000 share maximum is subject to upward and downward adjustment
pursuant to Section 9.
7. Exercise of Option.
7.1 Each exercise of an option granted hereunder, whether in whole
or in part, shall be by written notice thereof, delivered to the Chief Financial
Officer of the Corporation (or such other person as he may designate). The
notice shall state the number of shares with respect to which the Options are
being exercised and shall be accompanied by payment in full for the number of
shares so designated. Shares shall be registered in the name of the Optionee
unless the Optionee otherwise directs in his or her notice of election.
7.2 Such notice shall be accompanied by payment in full of the
purchase price, either by certified or bank check, or by any other form of legal
consideration deemed sufficient by the Committee and consistent with the Plan's
purpose and applicable law, including promissory notes or a properly executed
exercise notice together with irrevocable instructions to a broker acceptable to
the Company to promptly deliver to the company the amount of sale or loan
proceeds to pay the exercise price. As determined by the Committee, in its sole
discretion, payment in full or in part may also be made in the form of
unrestricted Stock already owned by the optionee. In the case of an ISO, the
right to make a payment in the form of already owned shares may be authorized
only at the time the option is granted. If the terms of an option so permit, an
optionee may elect to pay all or part of the option exercise price by having the
Company withhold from the shares of Stock that would otherwise be issued upon
exercise that number of shares of Stock having a Fair Market Value equal to the
aggregate option exercise price for the shares with respect to which such
election is made. No shares of Stock shall be issued until full payment therefor
has been made. An optionee shall generally have the rights to dividends and
other rights of a shareholder with respect to shares subject to the option when
the optionee has given written notice of exercise and has paid in full for such
shares.
10
<PAGE>
7.3 Upon notification of the amount due and prior to, or
concurrently with, the delivery to the Optionee of a certificate representing
any shares purchased pursuant to the exercise of an option, the Optionee shall
promptly pay to the Corporation any amount necessary to satisfy applicable
federal, state or local withholding tax requirements.
8. Extraordinary Corporate Transactions. New options may be
substituted for the Options granted under the Plan, or the Corporation's duties
as to Options outstanding under the Plan may be assumed, by a corporation other
than the Corporation, or by a parent or subsidiary of the Corporation or such
corporation, in connection with any merger, consolidation, acquisition,
separation, reorganization, liquidation or like occurrence in which the
Corporation is involved. Notwithstanding the foregoing or the provisions of
Section 9 hereof, in the event such corporation, or parent or subsidiary of the
Corporation or such corporation, does not substitute new Options for, and
substantially equivalent to, the Options granted hereunder, or assume the
Options granted hereunder, the Options granted hereunder shall terminate and
thereupon become null and void (i) upon dissolution or liquidation of the
Corporation, or similar occurrence, (ii) upon any merger, consolidation,
acquisition, separation, reorganization, or similar occurrence, where the
Corporation will not be a surviving entity or (iii) upon a transfer of
substantially all of the assets of the Corporation or more than 80% of the
outstanding Common Stock; provided, however, that each Optionee shall have the
right within a 30-day period prior to or concurrently with such dissolution,
liquidation, merger, consolidation, acquisition, separation, reorganization or
similar occurrence, to exercise any unexpired Option granted hereunder without
regard to any installment exercise restrictions.
9. Changes in Corporation's Capital Structure. The existence of
outstanding options shall not affect in any way the right or power of the
Corporation or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Corporation's capital
structure or its business, or any merger or consolidation of the Corporation, or
any issuance of Common Stock or subscription rights thereto, or any merger or
consolidation of the Corporation, or any issuance of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Common Stock or
the rights thereof, or the dissolution or liquidation of the corporation, or any
sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise;
provided, however, that if the outstanding shares of Common Stock of the
Corporation shall at any time be changed or exchanged by declaration of a stock
dividend, stock split, combination of shares or recapitalization, the number and
kind of shares subject to the Plan or subject to any Options theretofore
granted, and the option exercise prices, shall be appropriately and equitably
adjusted so as to maintain the proportionate number of shares without changing
the aggregate option exercise price.
10. Assignments. Any option granted under this Plan shall be
exercisable only by the Optionee to whom granted during his or her lifetime and
shall not be assignable or transferable otherwise than by will or by the laws of
descent and distribution.
11. Severance; Death; Disability. An Option shall terminate, and no
rights thereunder may be exercised, if the person to whom it is granted ceases
to be employed by the Corporation or by a Subsidiary except that:
11.1 If the employment of the Optionee is terminated by any reason
other than his or her death or disability, the Optionee may at any time within
not more than one month after termination of his or her employment, exercise his
or her option rights but only to the extent they were exercisable by the
Optionee on the date of termination of his or her employment; provided, however,
that if the employment is terminated as a result of the Optionee's deliberate,
willful or gross misconduct as determined by the Committee, all rights under the
Option shall terminate and expire upon such termination.
11
<PAGE>
11.2 If the Optionee dies while in the employ of the Corporation or
a Subsidiary, or within not more than one month after termination of his or her
employment, the Optionee's rights under the option may be exercised in whole or
in part, without regard to any installment exercise restrictions, at any time
within six months following such death by his or her personal representative or
by the person or persons to whom such rights under the Option shall pass by will
or by the laws of descent and distribution.
11.3 If the employment of the Optionee is terminated because of
permanent disability, the Optionee, or his or her legal representative, may at
any time within not more than six months after termination of his or her
employment, exercise his or her Option rights in whole or in part, without
regard to any installment exercise restrictions.
11.4 Notwithstanding anything contained in sections 11.1, 11.2 and
11.3 to the contrary, no option rights shall be exercisable by anyone after the
expiration of the term of the option.
11.5 Transfers of employment between the Corporation and a
Subsidiary, or between subsidiaries, will not constitute termination of
employment for purposes of any Option granted under this Plan. The Committee may
specify in the terms and conditions of an Option whether any authorized leave of
absence or absence for military or government service or for any other reasons
will constitute a termination of employment for purposes of the option and the
Plan.
12. Rights of Participants. Neither the participant nor the
personal representatives, heirs, or legatees of such participant shall be or
have any of the rights or privileges of a shareholder of the corporation in
respect of any of the shares issuable upon the exercise of an Option granted
under this Plan unless and until certificates representing such shares shall
have been issued and delivered to the participant or to such personal
representatives, heirs or legatees.
13. Securities Registration. If any law or regulation of the
Securities and Exchange Commission or of any other body having jurisdiction
shall require the Corporation or the participant to take any action in
connection with the exercise of an option, then notwithstanding any contrary
provision of an Option agreement or this Plan, the date for exercise of such
Option and the delivery of the shares purchased thereunder shall be deferred
until the completion of the necessary action. In the event that the Corporation
shall deem it necessary, the Corporation may condition the grant or exercise of
an Option granted under this Plan upon the receipt of a satisfactory certificate
that the Optionee is acquiring the option or the shares obtained by exercise of
the Option for investment purposes and not with the view or intent to resell or
otherwise distribute such Option or shares. In such event, the stock certificate
evidencing such shares shall bear a legend referring to applicable laws
restricting transfer of such shares. In the event that the Corporation shall
deem it necessary to register under the Securities Act of 1933, as amended, or
any other applicable statute, any Options or any shares with respect to which an
option shall have been granted or exercised, then the participant shall
cooperate with the Corporation and take such action as is necessary to permit
registration or qualification of such Options or shares.
14. Duration and Amendment.
14.1 There is no express limitation upon the duration of the Plan,
except for the requirement of the Code that all ISOs must be granted within ten
years from the date the Plan is adopted by the Board.
14.2 The Board may terminate or may amend the Plan at any time,
provided, however, that the Board may not, without approval of the shareholders
of the Corporation, (i) increase the maximum number of shares as to which
options may be granted under the Plan, (ii) permit the granting of ISOs at less
than 100%
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<PAGE>
of Fair Market Value at time of grant, or (iii) change the class of employees
eligible to receive Options under the Plan.
15. Approval of Shareholders. This Plan expressly is subject to
approval of shareholders of the Corporation, and if it is not so approved on or
before one year after the date of adoption of this Plan by the Board, the Plan
shall not come into effect, and any options granted pursuant to this Plan shall
be deemed canceled.
16. Conditions of Employment. The granting of an Option to a
participant under this Plan who is an employee shall impose no obligation on the
Corporation to continue the employment of any participant and shall not lessen
or affect the right of the Corporation to terminate the employment of the
participant.
Adopted by the Board of Directors on April 21, 1994.
Approved by shareholders on March 7, 1995.
Amendment authorizing additional 300,000 shares under the 1994 Plan
adopted by the Board of Directors on November 30, 1995.
Amendment approved by shareholders on January 23, 1996.
Amendment for compliance with Internal Revenue Code Section 162(m)
adopted by the Board of Directors on October 23, 1996.
Amendment approved by shareholders on January 21, 1997
Amendment authorizing additional 600,000 shares under the 1994 plan
adopted by the Board of Directors on October 23, 1998.
Amendment approved by shareholders on January 20, 1999
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Exhibit 5.1
May 27, 1999
Innovex, Inc.
530 11th Avenue South
Hopkins, Minnesota 55343-9904
Re: Opinion of Counsel as to Legality of 600,000 Shares of
Common Stock to be Registered under the Securities Act of
1933
Ladies and Gentlemen:
This opinion is furnished in connection with the registration under
the Securities Act of 1933 on Form S-8 of 600,000 shares of Common Stock, $0.04
par value, of Innovex, Inc. (the "Company") offered to officers, other key
employees and consultants of the Company pursuant to the Innovex, Inc. 1994
Stock Option Plan (the "Plan").
We advise you that it is our opinion, based on our familiarity with
the affairs of the Company and upon our examination of pertinent documents, that
the 600,000 shares of Common Stock to be issued by the Company under the Plan,
will, when paid for and issued, be legally and validly issued and lawfully
outstanding, fully paid and nonassessable shares of Common Stock of the Company.
The undersigned hereby consent to the filing of this opinion with
the Securities and Exchange Commission as an Exhibit to the Registration
Statement with respect to said shares of Common Stock under the Securities Act
of 1933.
Very truly yours,
LINDQUIST & VENNUM P.L.L.P.
/s/ Lindquist & Vennum P.L.L.P.
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Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated November 4, 1998 (except for Note K, as to which
the date was November 24, 1998), accompanying the consolidated financial
statements and schedule included in the Annual Report of Innovex, Inc. on Form
10-K for the year ended September 30, 1998 which is incorporated by reference in
this Registration Statement. We consent to the incorporation by reference in the
Registration Statement of the aforementioned report.
/s/ GRANT THORNTON LLP
Minneapolis, Minnesota
May 25, 1999
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