As filed with the Securities and Exchange Commission on May 19, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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.)
5540 PIONEER CREEK DRIVE
MAPLE PLAIN, MINNESOTA 55359-9003
(Address of Principal Executive Offices and zip code)
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INNOVEX, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
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William P. Murnane Copy to:
President and Chief Executive Officer Charles P. Moorse
Innovex, Inc. Kristin L. Johnson
5540 Pioneer Creek Drive Lindquist & Vennum P.L.L.P.
Maple Plain, MN 55359-9003 4200 IDS Center
(763) 479-5300 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>
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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
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<S> <C> <C> <C> <C>
Common Stock, 250,000 shares $7.9838(1) $1,995,950(1) $527
$.04 par value to be issued
pursuant to the Innovex, Inc.
Employee Stock Purchase 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 15, 2000.
<PAGE>
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, 1999.
(b) The Definitive Proxy Statement dated December 15, 1999 for the 2000
Annual Meeting of Shareholders held on January 19, 2000.
(c) The Quarterly Report of the Company on Form 10-Q for the quarters
ended December 31, 1999 and March 31, 2000.
(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.
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
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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.
Not applicable.
Item 8. Exhibits.
Exhibit
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4.1 First Amendment and Complete Restatement of the Innovex, Inc. Employee
Stock Purchase Plan
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)
- ---------------------
Item 9. Undertakings.
(a) The Company hereby undertakes:
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(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 arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which individually or in the
aggregate, 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 material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(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.
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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 Maple Plain, State of Minnesota, on May 19, 2000.
INNOVEX, INC.
By /s/ William P. Murnane
William P. Murnane, President and Chief Executive Officer
POWER OF ATTORNEY
The undersigned officers and directors of Innovex, Inc. hereby
constitute and appoint William P. Murnane 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 19, 2000 in the capacities indicated.
Signature
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/s/ Thomas W. Haley /s/ Gerald M. Bestler
- ------------------------------------- -------------------------------------
Thomas W. Haley, Chairman of the Gerald M. Bestler, Director
Board and Director
/s/ Douglas W. Keller /s/ Frank L. Farrar
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Douglas W. Keller, VP - Finance Frank L. Farrar, Director
/s/ William P. Murnane /s/ E. E. Hawk
- ------------------------------------- -------------------------------------
William P. Murnane, President, Chief Elick Eugene Hawk, Director
Executive Officer, and Director
/s/ William J. Miller /s/ Michael C. Slagle
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William J. Miller, Director Michael C. Slagle, Director
/s/ Bernt M. Tessem
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Bernt M. Tessem, Director
5
Exhibit 4.1
Effective April 1, 2000
FIRST AMENDMENT AND COMPLETE RESTATEMENT
OF THE
INNOVEX, INC.
EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, the Board of Directors approved the Innovex, Inc. Employee
Stock Purchase Plan (the "Plan") on October 29, 1999;
WHEREAS, pursuant to its annual shareholders meeting held on January
19, 2000, the shareholders of Innovex, Inc. approved the Plan with an effective
date of April 1, 2000;
WHEREFORE, to improve administrative efficiency and reduce
administrative costs, the Board of Directors of Innovex, Inc. have approved and
adopted this First Amendment and Complete Restatement of the Innovex, Inc.
Employee Stock Purchase Plan as follows:
1. ESTABLISHMENT OF PLAN. INNOVEX, INC. (hereinafter referred to as the
"Company") proposes to grant to certain employees of the Company the opportunity
to purchase common stock of the Company. Such common stock shall be purchased
pursuant to the plan herein set forth which shall be known as the "INNOVEX, INC.
EMPLOYEE STOCK PURCHASE PLAN" (hereinafter referred to as the "Plan"). The
Company intends that the Plan shall qualify as an "Employee Stock Purchase Plan"
under Section 423 of the Internal Revenue Code of 1986, as amended, and shall be
construed in a manner consistent with the requirements of said Section 423 and
the regulations thereunder.
2. PURPOSE. The Plan is intended to encourage stock ownership by employees of
the Company and any of its Subsidiaries to which the Company and such respective
Subsidiaries by action of their Boards of Directors shall make this Plan
applicable. The Plan is further intended as an incentive to them to remain in
employment, improve operations, increase profits, and contribute more
significantly to the Company's success, and to permit the Company to compete
with other corporations offering similar plans in obtaining and retaining the
services of competent employees.
3. ADMINISTRATION.
(a) The Plan shall be administered by a stock purchase committee
(hereinafter referred to as the "Committee"), consisting of two or more
directors or employees of the Company, as designated by the Board of
Directors of the Company (hereinafter referred to as the "Board of
Directors"). The Board of Directors shall fill all vacancies in the
Committee and may remove any member of the Committee at any time, with
or without cause.
(b) Unless the Board of Directors limits the authority delegated to the
Committee in its appointment, the Committee shall be vested with full
authority to make, administer, and interpret such rules and regulations
as it deems necessary to administer the Plan. For all purposes of this
Plan other than this Paragraph 3(b), references to the Committee shall
also refer to the Board of Directors.
(c) The Committee shall select its own chairman and hold its meetings
at such times and places as it may determine. All determinations of the
Committee shall be made by a majority of its members. Any decision
which is made in writing and signed by a majority of the members of
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the Committee shall be effective as fully as though made by a majority
vote at a meeting duly called and held.
(d) The determinations of the Committee shall be made in accordance
with its judgment as to the best interests of the Company, its
employees and its shareholders and in accordance with the purposes of
the Plan; provided, however, that the provisions of the Plan shall be
construed in a manner consistent with the requirements of Section 423
of the Internal Revenue Code, as amended. Such determinations shall be
binding upon the Company and the participants in the Plan unless
otherwise determined by the Board of Directors.
(e) The Company shall pay all expenses of administering the Plan. No
member of the Board of Directors or the Committee shall be liable for
any action or determination made in good faith with respect to the Plan
or any option granted under it. The Company shall indemnify each member
of the Committee against any and all claims, loss, damages, expenses
(including counsel fees approved by the Committee), and liability
(including any amounts paid in settlement with the Committee's
approval) arising from any loss or damage or depreciation which may
result in connection with the execution of his or her duties or the
exercise of his or her discretion, or from any other action or failure
to act hereunder, except when the same is judicially determined to be
due to gross negligence or willful misconduct of such member.
4. DURATION AND PHASES OF THE PLAN.
(a) The Plan will commence on April 1, 2000 or such later date
specified by the Committee, and will terminate September 30, 2005,
except that any Phase commenced prior to such termination shall, if
necessary, be allowed to continue beyond such termination until
completion. Notwithstanding the foregoing, this Plan shall be
considered of no force or effect and any options granted shall be
considered null and void unless the holders of a majority of all of the
issued and outstanding shares of the common stock of the Company
approve the Plan within twelve (12) months after the date of its
adoption by the Board of Directors. The Plan year shall be the same as
the Company's fiscal year, ending each September 30.
(b) The Plan shall be carried out in one or more Phases, each Phase
being for a period of six months, or such shorter or longer period of
time (not to exceed 27 months) as may be determined by the Committee
prior to the commencement of a Phase. No Phase shall run concurrently
with any other Phase but a Phase may commence immediately after the
termination of the preceding Phase. The existence and date of
commencement of a Phase (the "Commencement Date") shall be determined
by the Committee and shall terminate on a date (the "Termination Date")
which is not more than 365 days from a Commencement Date, provided that
the commencement of the first Phase shall be within six months before
or twelve months after the date of approval of the Plan by the
shareholders of the Company. In the event all of the stock reserved for
grant of options hereunder is issued pursuant to the terms hereof prior
to the commencement of one or more Phases scheduled by the Committee or
the number of shares remaining is so small, in the opinion of the
Committee, as to render administration of any succeeding Phase
impracticable, such Phase or Phases shall be canceled. Phases shall be
numbered successively as Phase 1, Phase 2, Phase 3, etc.
(c) The Board of Directors may elect to accelerate the Termination Date
of any Phase effective on the date specified by the Board of Directors
in the event of (i) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant
to which shares would be converted into cash, securities or other
property, other than a merger of the Company in which shareholders
immediately prior to the merger have the same
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proportionate ownership of stock in the surviving corporation
immediately after the merger; or (ii) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions)
of all or substantially all of the assets of the Company. Subject to
any required action by the shareholders, if the Company shall be
involved in any merger or consolidation, in which it is not the
surviving corporation, and if the Board of Directors does not
accelerate the Termination Date of the Phase, each outstanding option
shall pertain to and apply to the securities or other rights to which a
holder of the number of shares subject to the option would have been
entitled.
(d) A dissolution or liquidation of the Company shall cause each
outstanding option to terminate, provided in such event that,
immediately prior to such dissolution or liquidation, each Participant
shall be repaid the payroll deductions credited to his account without
interest.
5. ELIGIBILITY. All Employees, as defined in Paragraph 18 hereof who have
completed six or more months of employment service for the Company prior to the
Commencement Date of a Phase shall be eligible to participate in such Phase. Any
Employee who is a member of the Board of Directors of the Company who satisfies
the above requirements shall be eligible to participate in the Plan.
6. PARTICIPATION.
(a) Participation in the Plan is voluntary. An eligible Employee may
elect to participate in the Plan, and thereby become a "Participant" in
the Plan, by completing the Enrollment Form provided by the Company and
delivering it to the Company or its designated representative at least
five days prior to an Enrollment Date and five days prior to the
Commencement Date of that Phase. The Enrollment Date shall be
established by the Committee, which shall be no less often than annual
and shall coincide with one, but need not coincide with each,
Commencement Date. The first Commencement Date shall be April 1, 2000.
Payroll deductions for a Participant shall commence on the first payday
after the Commencement Date of the Phase and shall terminate on the
last payday immediately prior to or coinciding with the Termination
Date of that Phase unless sooner terminated by the Participant as
provided in Paragraph 9 hereof. A Participant who ceases to be an
eligible Employee, although still employed by the Company, thereupon
shall be deemed to discontinue his or her participation in the Plan and
shall have the rights provided in Section 9.
(b) Once enrolled in the Plan, a Participant will continue to
participate in the Plan until he or she ceases to be an Eligible
Employee, withdraws from the Plan pursuant to Section 9 or reaches the
end of the Plan Period. A Participant who withdraws from the Plan
pursuant to Section 9 may again become a Participant, if he or she is
then an Eligible Employee, by proceeding as provided in Section 6(a)
above. A Participant whose payroll deductions were discontinued because
of Section 8(a)(iv)(A) will automatically resume participation at the
beginning of the earliest Phase of the Plan ending in the next calendar
year, if he or she is then an Eligible Employee.
7. PAYROLL DEDUCTIONS.
(a) Upon enrollment, a Participant shall elect to make contributions to
the Plan by payroll deductions, in the aggregate amount not in excess
of 10% of such Participant's Pay (as determined in accordance with
Paragraph 18 hereof) for the term of the Phase or smaller percentage as
may be determined by the Committee prior to the commencement of a
Phase). The minimum authorization shall be 1% of a Participant's Pay
per pay period.
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(b) In the event that the Participant's compensation for any pay period
is terminated or reduced from the compensation rate for such a period
as of the Commencement Date of the Phase for any reason so that the
amount actually withheld on behalf of the Participant as of the
Termination Date of the Phase is less than the amount anticipated to be
withheld over the Phase as determined on the Commencement Date of the
Phase, then the extent to which the Participant may exercise his option
shall be based on the amount actually withheld on his behalf. In the
event of a change in the pay period of any Participant, such as from
bi-weekly to monthly, an appropriate adjustment shall be made to the
deduction in each new pay period so as to ensure the deduction of the
proper amount authorized by the Participant.
(c) A Participant may discontinue his participation in the Phase and
terminate his payroll deduction authorized at such times as determined
by the Committee and shall have the rights provided in Section 9. No
change can be made during a Phase of the Plan which would either change
the time or increase or decrease the rate of his payroll deductions.
(d) All payroll deductions made for Participants shall be credited to
their respective accounts under the Plan. A Participant may not make
any separate cash payments into such account.
8. OPTIONS.
(a) GRANT OF OPTION.
(i) A Participant who is employed by the Company as of the
Commencement Date of a Phase shall be granted an option as of
such date to purchase a number of full and fractional shares
of Company common stock to be determined by dividing the total
amount credited to that Participant's account under Paragraph
7 hereof by the option price set forth in Paragraph 8(a)(ii)
hereof, subject to the limitations of Paragraph 8(a)(iv) and
Paragraph 10 hereof.
(ii) The option price for such shares of common stock shall be
the lower of:
A. Eighty-five percent (85%) of the Fair Market Value
of such shares of common stock on the Commencement
Date of the Phase; or
B. Eighty-five percent (85%) of the Fair Market Value
of such shares of common stock on the Termination
Date of the Phase.
(iii) Stock options granted pursuant to the Plan may be
evidenced by agreements in such form as the Committee shall
approve, provided that all Employees shall have the same
rights and privileges and provided further that such options
shall comply with and be subject to the terms and conditions
set forth herein. The Committee may conclude that agreements
are not necessary.
(iv) Anything herein to the contrary notwithstanding, no
Employee shall be granted an option hereunder:
A. Which permits his rights to purchase stock under
all employee stock purchase plans of the Company, its
Subsidiaries or its parent, if any, to accrue at a
rate which exceeds the lesser of Twenty-Five Thousand
Dollars ($25,000) of the Fair Market Value of such
stock (determined at the time such option is
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granted) for each calendar year in which such option
is outstanding at any time or 1,500 shares per Phase
under the Plan; or
B. If immediately after the grant such Employee would
own and/or hold outstanding options to purchase stock
possessing five percent (5%) or more of the total
combined voting power or value of all classes of
stock of the Company, its parent, if any, or of any
subsidiary of the Company. For purposes of
determining stock ownership under this Paragraph, the
rules of Section 424(d) of the Internal Revenue Code,
as amended, shall apply.
(v) The grant of an option pursuant to this Plan shall not
affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of
its capital or business structure or to merge or to
consolidate or to dissolve, liquidate or sell, or transfer all
or any part of its business or assets.
(b) EXERCISE OF OPTION.
(i) Unless a Participant gives written notice to the Company
pursuant to Paragraph 9 prior to the Termination Date of a
Phase, his option for the purchase of shares will be exercised
automatically for him as of such Termination Date for the
purchase of the number of full and fractional shares of
Company common stock which the accumulated payroll deductions
in his account at that time will purchase at the applicable
option price, but in no event shall the number of full and
fractional shares be greater than the number of full and
fractional shares to which a Participant would have been
eligible to purchase under Section 8(a)(i), and subject to the
limitations set forth in Paragraph 10 hereof.
(ii) The Company shall, in addition, return to the Participant
a cash payment equal to the balance, if any, in his account
which was not used for the purchase of common stock, without
interest, as promptly as practicable after the Termination
Date of any Phase.
(iii) The Committee may appoint a registered broker dealer to
act as agent for the Company in holding and performing
ministerial duties in connection with the Plan, excluding, but
not limited to, maintaining records of stock ownership by
Participants and holding stock in its own name for the benefit
of the Participants. No trust or escrow arrangement shall be
express or implied by the exercise of such duties by the
agent. A Participant may, at any time, request of the agent
that any shares allocated to the Participant be registered in
the name of the Participant or in joint tenancy with the
Participant, in which event the agent shall issue a
certificate for the whole number of shares in the name of the
Participant (and his joint tenant, if any) and shall deliver
to the Participant any cash for fractional shares, based on
the then Fair Market Value of the shares on the date of
issuance.
(c) DIVIDEND REINVESTMENT. Unless the Committee designates otherwise,
and except as provided in this section, dividends on a Participant's
shares will automatically be reinvested in additional shares of stock
of the Company. If a Participant desires to receive dividends in the
form of cash, he must request that a certificate for such shares be
issued in the name of the Participant by filing an appropriate form
with the Company. Any shares purchased through the reinvestment of
dividends may be issued from the shares authorized under this Plan or
purchased on the open market, as directed by the Committee. If the
shares are purchased
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directly from the Company, the purchase price shall be the Fair Market
Value of a share or the date such dividends are paid. Otherwise, the
purchase price may be an average of shares purchased on the open market
with the aggregate amount of dividends.
9. DISPOSITION OF OPTION SHARES. For a period of up to 12 months beginning on
the date of exercise of options granted pursuant to the Plan, each share of
stock issued may not, without the consent of the Committee, which consent shall
be provided in a uniform and nondiscriminatory manner for similarly situated
Participants, be sold, transferred, pledged or encumbered (including payment of
the price upon subsequent exercise of options, or pay income tax on such
exercise). The Committee may waive such restrictions with respect to stock
acquired upon the exercise of options granted or to be granted during any Phase
of the Plan, either prior to or at any time subsequent to the Commencement Date
of the Phase and may establish uniform rules for the transfer of such stock
during such period. During the period such shares are subject to the
restrictions of this subsection (d), such shares shall be held by the transfer
agent or the Company, or an appropriate legend describing the restriction and
referencing the Plan shall be placed on the certificate evidencing such stock.
10. WITHDRAWAL OR TERMINATION OF PARTICIPATION.
(a) A Participant may, at any time prior to the Termination Date of a
Phase, withdraw all payroll deductions then credited to his account by
giving written notice to the Company. Promptly upon receipt of such
notice of withdrawal, all payroll deductions credited to the
Participant's account will be paid to him without interest accrued
thereon and no further payroll deductions will be made during the
Phase. In such event, the option granted the Participant under that
Phase of the Plan shall lapse immediately. Partial withdrawals of
payroll deductions hereunder may not be made.
(b) Notwithstanding the provisions of Section 8(a) above, if a
Participant files reports pursuant to Section 16 of the Securities
Exchange Act of 1934 (at the Commencement Date of a Phase or becomes
obligated to file such reports during a Phase) then such a Participant
shall not have the right to withdraw all or a portion of the
accumulated payroll deductions except in accordance with Sections 8(c)
and (d) below.
(c) In the event of the death of a Participant, the person or persons
specified in Paragraph 14 may give notice to the Company within sixty
(60) days of the death of the Participant electing to purchase the
number of full shares which the accumulated payroll deductions in the
account of such deceased Participant will purchase at the option price
specified in Paragraph 8(a)(ii) and have the balance in the account
distributed in cash without interest accrued thereon to the person or
persons specified in Paragraph 14. If no such notice is received by the
Company within said sixty (60) days, the accumulated payroll deductions
will be distributed in full in cash without interest accrued thereon to
the person or persons specified in Paragraph 14.
(d) Upon termination of Participant's employment for any reason other
than death of the Participant, the payroll deductions credited to his
account, without interest, shall be returned to him.
(e) The Committee shall be entitled to make such rules, regulations and
determination as it deems appropriate under the Plan in respect of any
leave of absence taken by or disability of any Participant. Without
limiting the generality of the foregoing, the Committee shall be
entitled to determine:
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(i) whether or not any such leave of absence shall constitute
a termination of employment for purposes of the Plan; and
(ii) the impact, of any, of any such leave of absence on
options under the Plan theretofore granted to any Participant
who takes such leave of absence.
(f) A Participant who discontinues his participation during a Phase
shall not be permitted to recommence participation until the next
Enrollment Date. A Participant's withdrawal will not have any effect
upon his eligibility to participate in any succeeding Phase of the Plan
that commences after the next Enrollment Date or in any similar plan
which may hereafter be adopted by the Company.
11. STOCK RESERVED FOR OPTIONS.
(a) The maximum number of shares of the Company's common stock to be
issued upon the exercise of options to be granted under the Plan shall
be Two Hundred Fifty Thousand (250,000). Such shares may, at the
election of the Board of Directors, be either treasury shares, shares
authorized but not issued or shares acquired in the open market by the
Company. Shares subject to the unexercised portion of any lapsed or
expired option may again be subject to option under the Plan.
(b) If the total number of shares of the Company common stock for which
options are to be granted for a given Phase as specified in Paragraph 8
exceeds the number of shares then remaining available under the Plan
(after deduction of all shares for which options have been exercised or
are then outstanding) and if the Committee does not elect to cancel
such Phase pursuant to Paragraph 4, the Committee shall make a pro rata
allocation of the shares remaining available in as uniform and
equitable a manner as it shall consider practicable. In such event, the
options to be granted and the payroll deductions to be made pursuant to
the Plan which would otherwise be effected may, in the discretion of
the Committee, be reduced accordingly. The Committee shall give written
notice of such reduction to each Participant affected.
(c) The Participant (or a joint tenant named pursuant to Paragraph
10(d) hereof) shall have no rights as a shareholder with respect to any
shares subject to the Participant's option until the date of the
issuance of a stock certificate evidencing such shares. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property), distributions or other rights for
which the record date is prior to the date such stock certificate is
actually issued, except as otherwise provided in Paragraph 12 hereof.
(d) The shares of the Company common stock to be delivered to a
Participant pursuant to the exercise of an option under the Plan will
be registered in the name of the Participant or, if the Participant so
directs by written notice to the Committee prior to the Termination
Date of that Phase of the Plan, in the names of the Participant and one
other person the Participant may designate as his joint tenant with
rights of survivorship, to the extent permitted by law.
12. ACCOUNTING AND USE OF FUNDS. Payroll deductions for each Participant shall
be credited to an account established for him under the Plan. Such account shall
be solely for bookkeeping purposes and no separate fund or trust shall be
established hereunder and the Company shall not be obligated to segregate such
funds. All funds from payroll deductions received or held by the Company under
the Plan may be used, without limitation, for any corporate purpose by the
Company.
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13. ADJUSTMENT PROVISION.
(a) Subject to any required action by the shareholders of the Company,
the number of shares covered by each outstanding option, and the price
per share thereof in each such option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of
the Company common stock resulting from a subdivision or consolidation
of shares or the payment of a share dividend (but only on the shares)
or any other increase or decrease in the number of such shares effected
without receipt of consideration by the Company.
(b) In the event of a change in the shares of the Company as presently
constituted, which is limited to a change of all its authorized shares
with par value into the same number of shares with a different par
value or without par value, the shares resulting from any such change
shall be deemed to be the shares within the meaning of this Plan.
(c) To the extent that the foregoing adjustments relate to shares or
securities of the Company, such adjustments shall be made by the
Committee, and its determination in that respect shall be final,
binding and conclusive, provided that each option granted pursuant to
this Plan shall not be adjusted in a manner that causes the option to
fail to continue to qualify as an option issued pursuant to an
"employee stock purchase plan" within the meaning of Section 423 of the
Code.
(d) Except as hereinbefore expressly provided in this Paragraph 12, the
optionee shall have no right by reason of any subdivision or
consolidation of shares of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of
any class or by reason of any dissolution, liquidation, merger, or
consolidation or spin-off of assets or stock of another corporation,
and any issue by the Company of shares of any class, or securities
convertible into shares of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number
or price of shares subject to the option.
14. NON-TRANSFERABILITY OF OPTIONS.
(a) Options granted under any Phase of the Plan shall not be
transferable except under the laws of descent and distribution and
shall be exercisable only by the Participant during his lifetime and
after his death only by his beneficiary of the representative of his
estate as provided in Paragraph 9(b) hereof.
(b) Neither payroll deductions credited to a Participant's account, nor
any rights with regard to the exercise of an option or to receive
common stock under any Phase of the Plan may be assigned, transferred,
pledged or otherwise disposed of in any way by the Participant. Any
such attempted assignment, transfer, pledge or other disposition shall
be null and void and without effect, except that the Company may, at
its option, treat such act as an election to withdraw funds in
accordance with Paragraph 9.
15. DESIGNATION OF BENEFICIARY.
(a) A Participant may file a written designation of a beneficiary who
is to receive any cash to the Participant's credit without interest
thereon under any Phase of the Plan in the event of such Participant's
death prior to exercise of his option pursuant to Paragraph 8(b)
hereof, or to exercise his option and become entitled to any stock
and/or cash upon such exercise in the event of the Participant's death
prior to exercise of the option pursuant to Paragraph 8(b) hereof. The
beneficiary designation may be changed by the Participant at any time
upon receipt of a written notice by the Company.
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(b) Upon the death of a Participant and upon receipt by the Company of
proof deemed adequate by it of the identity and existence at the
Participant's death of a beneficiary validly designated under the Plan,
the Company shall in the event of the Participant's death, allow such
beneficiary to exercise the Participant's option pursuant to Paragraph
9(c) if such beneficiary is living on the Termination Date of the Phase
and deliver to such beneficiary the appropriate stock and/or cash after
exercise of the option. In the event there is not validly designated
beneficiary under the Plan who is living at the time of the
Participant's death or in the event the option lapses, the Company
shall deliver the cash credited to the account of the Participant
without interest to the executor or administrator of the estate of the
Participant, or if no such executor or administrator has been appointed
to the knowledge of the Company, it may, in its discretion, deliver
such cash to the spouse (or, if no surviving spouse, to any one or more
children of the Participant), or if no spouse or child is known to the
Company, then to such relatives of the Participant known to the Company
as would be entitled to such amounts, under the laws of intestacy in
the deceased Participant's domicile as though named as the designated
beneficiary hereunder. The Company will not be responsible for or be
required to give effect to the disposition of any cash or stock or the
exercise of any option in accordance with any will or other
testamentary disposition made by such Participant or in accordance with
the provision of any law concerning intestacy, or otherwise. No
designated beneficiary shall, prior to the death of a Participant by
whom he has been designated, acquire any interest in any stock or in
any option or in the cash credited to the Participant under any Phase
of the Plan.
16. AMENDMENT AND TERMINATION. The Plan may be terminated at any time by the
Board of Directors provided that, except as permitted in Paragraph 4(c) with
respect to an acceleration of the Termination Date of any Phase, no such
termination will take effect with respect to any options then outstanding. Also,
the Board may, from time to time, amend the Plan as it may deem proper and in
the best interests of the Company or as may be necessary to comply with Section
423 of the Internal Revenue Code of 1986, as amended, or other applicable laws
or regulations; provided, however, that no such amendment shall, without prior
approval of the shareholders of the Company (1) increase the total number of
shares for which options may be granted under the Plan (except as provided in
Paragraph 12 herein), (2) permit aggregate payroll deductions in excess of ten
percent (10%) of a Participant's compensation as of the Commencement Date of a
Phase, or (3) impair any outstanding option.
17. NOTICES. All notices or other communications in connection with the Plan or
any Phase thereof shall be in the form specified by the Committee and shall be
deemed to have been duly given when received by the Participant or his
designated personal representative or beneficiary or by the Company or its
designated representative, as the case may be.
18. PARTICIPATION OF SUBSIDIARIES.
(a) The Employees of any Subsidiary of the Company, shall be entitled
to participate in the Plan on the same basis as Employees of the
Company, unless the Board of Directors determines otherwise. Effective
as of the date of coverage of any Subsidiary, any references herein to
the "Company" shall be interpreted as referring to such Subsidiary as
well as to INNOVEX, INC.
(b) In the event that any Subsidiary which is covered under the Plan
ceases to be a Subsidiary of INNOVEX, INC. the employees of such
Subsidiary shall be considered to have terminated their employment for
purposes of Paragraph 9 hereof as of the date such Subsidiary ceases to
be such a Subsidiary.
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19. DEFINITIONS.
(a) "Subsidiary" shall include any domestic corporation defined as a
subsidiary of the Company in Section 424(f) of the Internal Revenue
Code of 1986, as amended.
(b) "Employee" shall mean any employee, including an officer, of the
Company who as of the day immediately preceding the Commencement Date
of a Phase is customarily employed by the Company for more than twenty
(20) hours per week and more than five (5) months in a calendar year.
(c) "Fair Market Value" shall mean, if the common stock of the Company
is registered, the Fair Market Value of the shares shall be the closing
price of the stock on the applicable date or the nearest prior business
day on which trading occurred on the NASDAQ National Market. If the
common stock is not registered, the Fair Market Value of shares of
common stock of the Company shall be determined by the Committee for
each valuation date in a manner acceptable under Section 423 of the
Internal Revenue Code of 1986.
(d) "Pay" is the regular pay for employment for each employee as
annualized for a twelve (12) month period, including salary reduction
contributions by the Participant under any plan of the Employer
pursuant to Code ss.ss. 401(k) or 125, but exclusive of overtime,
commissions, bonuses, disability payments, shift differentials,
incentives and other similar payments, determined as of the
Commencement Date of each Phase.
20. MISCELLANEOUS.
(a) No Employment Rights. The Plan shall not, directly or indirectly,
create any right for the benefit of any Employee or class of Employees
to purchase any shares under the Plan, or create in any Employee or
class of Employees any right with respect to continuation of employment
by the Company, and it shall not be deemed to interfere in any way with
the Company's right to terminate, or otherwise modify, an Employee's
employment at any time.
(b) Effect of Plan. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all
successors of each Employee participating in the Plan, including,
without limitation, such Employee's estate and the executors,
administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy, or representative of creditors of such
Employee.
(c) Governing Law. The law of the State of Minnesota will govern all
matters relating to this Plan except to the extent it is superseded by
the laws of the United States.
(d) Registration and Qualification of Shares. The offering of the
shares hereunder shall be subject to the effecting by the Company of
any registration or qualification of the shares under any federal or
state law or the obtaining of the consent or approval of any
governmental regulatory body which the Company shall determine, in its
sole discretion, is necessary or desirable as a condition to or in
connection with, the offering or the issue or purchase of the shares
covered thereby. The Company shall make every reasonable effort to
effect such registration or qualification or to obtain such consent or
approval.
(e) Plan Preconditions. The Plan is expressly made subject to (i) the
approval by shareholders of the Company, and (ii) at its election, the
receipt by the Company from the Internal Revenue Service of a
determination letter or ruling, in scope and content satisfactory to
counsel,
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respecting the qualification of the Plan within the meaning of Section
423 of the Code. If the Plan is not so approved by the shareholders and
if, at the election of the Company, the aforesaid determination letter
or ruling from the Internal Revenue Service is not received on or
before one year after this Plan's adoption by the Board of Directors,
this Plan shall not come into effect. In such case, the accumulated
payroll deductions credited to the account of each Participant shall
forthwith be repaid to him without interest.
Approved by Board of Directors: October 21, 1999
Approved by Stockholders: January 19, 2000
Amended by Board of Directors: March 1, 2000
16
Exhibit 5.1
May 18, 2000
Innovex, Inc.
5540 Pioneer Creek Drive
Maple Plain, Minnesota 55359-9003
Re: Opinion of Counsel as to Legality of 250,000 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 250,000 shares of Common Stock, $0.04 par
value, of Innovex, Inc. (the "Company") offered to certain employees of the
Company pursuant to the Innovex, Inc. Employee Stock Purchase 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
250,000 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 11, 1999 (except for the third
paragraph of Note L, as to which date was November 15, 1999), 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, 1999 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 12, 2000
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