<PAGE> 1
As filed with the Securities and Exchange Commission on October 11, 1996
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
RESPONSE ONCOLOGY, INC.
(Exact name of registrant as specified in its Charter)
TENNESSEE 62-1212264
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1775 MORIAH WOODS BOULEVARD
MEMPHIS, TENNESSEE 38117
(Address of principal executive offices) (Zip Code)
RESPONSE TECHNOLOGIES, INC. 1990 NON-QUALIFIED STOCK OPTION PLAN AS AMENDED
(Full title of the plan)
Debbie K. Elliott Copy to:
1775 Moriah Woods Boulevard John A. Good, Esq.
Memphis, Tennessee 38117 Baker Donelson Bearman & Caldwell
(901) 761-7000 165 Madison Ave., Suite 2100
(Name, Address, and telephone number, Memphis, Tennessee 38103
including area code, of agent for service) (901) 577-2148
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed
Title of Securities to be Amount to be Offering Price Maximum Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 825,000(1) $14.5625(2) $12,014,063(2) $3,641(1)(2)
==========================================================================================================
</TABLE>
(1) This figure represents the number of shares of Common Stock being
registered hereby for purchase by employees under the Response Technologies,
Inc. 1990 Non-Qualified Stock Option Plan (the "Plan"), and does not include the
1,500,000 shares previously registered on February 11, 1992, Registration No.
33-45616, for which a fee of $3,544.92 was previously paid. There are also
registered an undetermined number of additional shares of Common Stock that may
become available for purchase in accordance with the provisions of the Plan in
the event of certain changes in the outstanding shares of Common Stock of the
Company, including a stock dividend or stock split.
(2) Estimated solely for the purpose of determining the amount of the
registration fee. Such estimate has been calculated in accordance with Rule
457(h) under the Securities Act of 1933, as amended, and are based upon the
average high and low sales prices of the Registrant's Common Stock as reported
on the National Market of The Nasdaq Stock Market on October 9, 1996. The
filing fee is being paid only for the additional shares registered pursuant to
General Instruction E to Form S-8.
Pursuant to Rule 462 of the 1933 Act, the Registration Statement on Form S-8
shall be effective upon filing with the Commission.
<PAGE> 2
The contents of the Registration Statement on Form S-8 for Response
Technologies, Inc., Registration No. 33-45616 are incorporated herein by
reference.
ITEM 8. EXHIBITS.
Exhibit No. Exhibit
- ----------- -------
4(a)* Charter of the Company (incorporated herein by reference to
Exhibit 3(a) to the Company's Annual Report on Form 10-K for the
fiscal year ended April 30, 1989.
4(b)* Bylaws of the Company (incorporated herein by reference to
Exhibit 3(b) to Registration Statement on Form S-1 (Commission
File No. 33-5016)).
4(c)* Response Technologies, Inc. 1990 Non-Qualified Stock Option
Plan.
4(d) Response Technologies, Inc. 1990 Non-Qualified Stock Option
Plan As Amended.**
4(e) Amendment No. 2 to the Response Technologies, Inc. 1990
Non-Qualified Stock Option Plan.
4(f) Amendment No. 3 to the Response Technologies, Inc. 1990
Non-Qualified Stock Option Plan.
4(g)* Trust Indenture, Deed of Trust and Security Agreement dated
April 3, 1990 (incorporated herein by reference to Exhibit 4 to
the Company's Annual Report on Form 10-K for the fiscal year
ended April 30, 1990 (Commission File No. 0-15416).
4(h) Form of Stock Option Agreement to be entered into with respect
to Non-Qualified Stock Options.
5 Opinion of Baker, Donelson, Bearman & Caldwell.
24 Consent of KPMG Peat Marwick LLP.
* Incorporated by reference to the Company's Registration Statement on
Form S-8 Commission File No. 33-45616, filed with the Commission on
February 11, 1992.
** The Response Technologies, Inc. 1990 Non-Qualified Stock Option Plan As
Amended effects the first amendment to such plan.
<PAGE> 3
SIGNATURES
Pursuant to the requirement 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 its Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Memphis, State of Tennessee, on October 10, 1996.
RESPONSE ONCOLOGY, INC.
By: /s/ Joseph T. Clark
----------------------------------------
Joseph T. Clark, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ William H. West, M.D. Chairman and Director October 10, 1996
- -------------------------------
William H. West, M.D.
/s/ Frank M. Bumstead Vice Chairman and Director October 10, 1996
- -------------------------------
Frank M. Bumstead
/s/ Joseph T. Clark Chief Executive Officer and Director October 10, 1996
- -------------------------------
Joseph T. Clark
/s/ Debbie K. Elliott Executive Vice President, Finance October 10, 1996
- ------------------------------- (Principal Financial Officer) and
Debbie K. Elliott Secretary
/s/ W. Thomas Grant, II Director October 10, 1996
- -------------------------------
W. Thomas Grant, II
/s/ P. Anthony Jacobs Director October 10, 1996
- -------------------------------
P. Anthony Jacobs
/s/ James R. Seward Director October 10, 1996
- -------------------------------
James R. Seward
Director October __, 1996
- -------------------------------
Leonard Kalman, M.D.
Director October __, 1996
- -------------------------------
Lawrence Kugelman
</TABLE>
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Exhibit Page
- ----------- ------- ----
<S> <C> <C>
4(a)* Charter of the Company (incorporated herein by reference to Exhibit 3(a)
to the Company's Annual Report on Form 10-K for the fiscal year ended
April 30, 1989.
4(b)* Bylaws of the Company (incorporated herein by reference to Exhibit 3(b)
to Registration Statement on Form S-1 (Commission File No. 33-5016)).
4(c)* Response Technologies, Inc. 1990 Non-Qualified Stock Option Plan.
4(d) Response Technologies, Inc. 1990 Non-Qualified Stock Option Plan As
Amended.**
4(e) Amendment No. 2 to the Response Technologies, Inc. 1990 Non-Qualified
Stock Option Plan.
4(f) Amendment No. 3 to the Response Technologies, Inc. 1990 Non-Qualified
Stock Option Plan.
4(g)* Trust Indenture, Deed of Trust and Security Agreement dated
April 3, 1990 (incorporated herein by reference to Exhibit 4 to the
Company's Annual Report on Form 10-K for the fiscal year ended
April 30, 1990 (Commission File No. 0-15416).
4(h) Form of Stock Option Agreement to be entered into with respect to
Non-Qualified Stock Options.
5 Opinion of Baker, Donelson, Bearman & Caldwell
24 Consent of KPMG Peat Marwick LLP
</TABLE>
* Incorporated by reference to the Company's Registration Statement on Form
S-8 Commission File No. 33-45616, filed with the Commission on
February 11, 1992.
** The Response Technologies, Inc. 1990 Non-Qualified Plan As Amended effects
the first amendment to such plan.
<PAGE> 1
EXHIBIT 4(d)
RESPONSE TECHNOLOGIES, INC.
1990 NON-QUALIFIED STOCK OPTION PLAN
AS AMENDED
1. The Purpose of the Plan. This Plan is intended to provide an
opportunity for individuals performing services to the Corporation, including
officers, directors, Key Employees and consultants of the Corporation and its
Affiliates, to acquire shares of the Corporation's Common Stock, providing an
equity interest in the Corporation and additional compensation based on
appreciation of the value of such stock. The Plan provides for the grant of
stock Options which do not qualify as "incentive stock Options", as defined in
Section 422A of the Code, (a) as an incentive to service or continued service
to the Corporation in order to aid the Corporation in obtaining and retaining
key personnel of outstanding ability, and (b) in substitution for stock Options
of companies which may be acquired by the Corporation.
2. Definitions. For purposes of this Plan, the following terms
will be defined as indicated:
(a) "Affiliate" means any person or entity which controls,
is controlled by, or under common control with, the Corporation.
(b) "Board" means the Board of Directors of the
Corporation.
(c) "Cause" means habitual drug use or drunkenness,
embezzlement of Corporation funds, conduct which is demonstrably
injurious to the Corporation, or conviction of a felony, all as
determined in good faith by the Board or Committee.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" has the meanings prescribed in paragraphs 4
and 7.
(f) "Common Stock" means the common stock of the
Corporation, $.002 par value.
(g) "Corporation" means Response Technologies, Inc., a
Tennessee corporation.
(h) "Disinterested" has the meaning prescribed by Rule
16b-3 from time to time.
(i) "Fair Market Value" means the closing price of the
Common Stock, as reported by the American Stock Exchange or by any
national securities exchange upon which the Common Stock is traded. In
the event the Common Stock is not listed on an exchange or traded in
the over-the-counter market, then the Board or Committee will
<PAGE> 2
determine Fair Market Value, which determination will be made in good
faith and will be binding.
(j) "Key Employee" means a full-time salaried employee who,
in the judgment of the Board or Committee, is instrumental to the
success of the corporation or one of its Affiliates.
(k) "Option" means an Option granted pursuant to the Plan.
(l) "Plan" means the Corporation's 1990 non-qualified stock
Option plan described herein.
(m) "Rule 16b-3" means Rule 16b-3 as promulgated under the
Securities Exchange Act of 1934, as amended, as the rule may be
amended from time to time.
(n) "Substitute Option" is an Option granted in
substitution for Options to purchase equity securities of a company
acquired by the Corporation.
3. Stock Subject to the Plan. In no event will the total number
of shares of Common Stock issued or reserved for issuance under the Plan exceed
3,300,000. If an Option expires or terminates for any reason without being
exercised in full, the shares subject thereto which have not been purchased
will again be available for purposes of the Plan. The number of shares as to
which Options may be granted under the Plan will be proportionately adjusted,
to the nearest whole share, in the event of any stock dividend, stock split,
share combination or similar recapitalization involving the Common Stock. In
the event that there is an insufficient number of authorized shares of Common
Stock available to allow exercise of the Options on the date of any grant
hereunder, such Options will not be exercisable until there are sufficient
shares of Common Stock authorized for issuance.
4. Administration of the Plan. The Board may administer this Plan
itself or may appoint a Committee of the Board to administer the Plan. The
Committee will be so constituted as to permit the Plan to comply with Rule
16b-3. Subject to the provisions of the Plan, the Committee will have full
authority and discretion to determine the directors, officers, Key Employees and
outside consultants of the Corporation and its Affiliates to whom Options will
be granted, the number of shares to be subject to each Option, the Option
prices, and the exercise period for the Options. In making such
determinations, the Committee may take into account the nature of the services
rendered or to be rendered by such individuals, their past, present or
potential contributions to the Corporation, and any other factors which the
Committee deems relevant. Subject to the provisions of the Plan, the Committee
will have full and conclusive authority to interpret the Plan; to prescribe,
amend and rescind rules and regulations relating to the Plan; to determine the
terms and provisions of the respective Option agreements (which need not be
identical); and to make all other determinations necessary or advisable for the
proper administration of the Plan. The Board may at any time remove members
from or add members to the Committee, or may abolish the Committee and revest
in the Board the
2
<PAGE> 3
administration of the Plan. Vacancies on the Committee, howsoever caused, will
be filled by the Board.
5. Option Agreement. Each grant of an Option will be evidenced by
an Option agreement, executed by the holder of the Option and the Corporation,
and such other instruments in such form as the Board or Committee approves from
time to time, which instruments will (i) comply with and include expressly or
by reference the terms and conditions set forth in this Plan, and (ii) may
include such other provisions not inconsistent with the provisions of this
Plan as the Board or Committee deems advisable, including provisions granting
the holder the right to receive property at the time of exercise of the Option
(provided that Section 83 of the Code applies to any such property other than
cash). The terms and conditions of the Option agreements need not contain
similar provisions. The granting of any Option under the Plan will not be
deemed either to entitle the holder of the Option to, or to disqualify such
holder from, participation in any other grant of Options under the Plan.
6. Eligibility. Options may be granted to directors, officers,
Key Employees and consultants of the Corporation and its present or future
Affiliates; provided, however, that directors elected to the Board of Directors
of the Corporation by Seafield Capital Corporation or any successor to Seafield
Capital Corporation shall not be eligible to participate in the Plan; and,
provided further, that Options granted to directors and officers of the
Corporation under the Plan will comply with the provisions of paragraph 7
hereunder. Substitute Options may be granted to directors, officers, Key
Employees and consultants of any company acquired by the Corporation (or any
subsidiary of such acquired company) so long as such person is otherwise
eligible to participate in the Plan.
7. Granting of Options to Directors and Officers. Administrative
discretion regarding the selection of any director or officer of the
Corporation to whom Options may be granted pursuant to this Plan, or the
determination of the number of shares of Common Stock which may be allocated
under such Options, will be exercised by (i) the Board, if each member is
Disinterested, or (ii) a Committee of two or more directors, each of whom is
Disinterested.
8. Terms and Conditions of Options. Subject to the following
provisions, all Options shall be in such form and upon such terms and
conditions as the Board or Committee, in its discretion, may from time to time
determine.
(a) Option Price. Except in the case of Substitute
Options, the Option price per share shall be an amount determined by
the Committee or the Board at the time the Option is granted, taking
into account the market price of the Common Stock on such date, the
value of services provided or to be provided by the recipient of the
Options, and the overall value of the compensation of the recipient by
the Corporation and its Affiliates. The Option price per share shall
in no event be less than the par value of the Common Stock. In the
case of Substitute Options, the Option price per share shall be
determined by multiplying the market price of the Common Stock
immediately prior to acquisition by the exchange ratio applicable to
the class of equity securities of the
3
<PAGE> 4
acquired company subject to the acquired company's options immediately
prior to acquisition, if any, or, if no such exchange ratio is
applicable, by a factor determined by the Board. The Corporation will
not be required to issue Options or Substitute Options for fractional
shares, but may, in the discretion of the Board or Committee, round to
the nearest whole share.
(b) Option Term. No Option will be exercisable after the
expiration of ten (10) years from the date the Option is granted. The
date of grant will be the date on which the Board or Committee has
approved the terms and conditions of the Option agreement evidencing
the Option, has determined the recipient of the Option and the number
of shares covered by the Option, and has taken all other action as is
necessary to complete the grant of the Option.
(c) Payment and Withholding. Payment for all shares
purchased pursuant to exercise of an Option shall be made in cash or by
delivery of unrestricted shares of Common Stock at Fair Market Value on
the date of exercise. The payment will be made at the time the Option
or any part thereof is exercised, and no shares will be issued until
full payment therefor has been made. Payment in currency or by check,
bank draft, cashier's check or postal money order will be considered
payment in cash. In addition to the exercise price under the Option,
the Corporation will have the right, if applicable, to require the
holder of an Option to remit to the Corporation an amount sufficient to
satisfy any federal, state or local withholding tax liability prior to
the delivery of any certificate or certificates for shares issuable
upon exercise of the Option.
(d) Conditions to Exercise of an Option. Except in the
case of a Substitute Option, no Option may be exercised to any extent
until the holder will have been employed or retained by, or has served
as a director of, the Corporation or one of its Affiliates continuously
for at least three (3) months from the date of grant. Except as
provided in subparagraph (f) below, an Option may not be exercised by
the holder unless he is then, and continuously after the grant of the
Option has been a director, officer, Key Employee or consultant of the
Corporation or one of its Affiliates. No Option may be exercised by a
holder with respect to fractional shares unless approved by the Board
or Committee.
(e) Nontransferability of Options. An Option will not be
transferable or assignable except by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order as
defined by the Internal Revenue Code of 1986, as amended, or Title I of
the Employee Retirement Income Security Act, or the rules thereunder.
An Option will be exercisable, during the holder's lifetime, only by
him.
(f) Termination of Employment or Death. In the event that
a holder ceases to be employed or retained by, or to be a director of,
the Corporation or any of its Affiliates for any reason other than his
death, disability or termination for Cause and will no longer be
employed or retained by, or a director of, any of them, such holder
will
4
<PAGE> 5
have the right to exercise the Option under the Plan at any time within
three (3) months after his termination of employment, retention or
directorship to the extent his right to exercise the Option has accrued
pursuant to the grant and had not previously been exercised at the date
of termination. In the event of termination of employment, retention
or directorship of the holder by reason of disability, the holder may
not exercise an Option later than twelve (12) months after the date of
such termination. If the holder of an Option dies while he is employed
or retained by, or is a director of, the Corporation or one of its
Affiliates, his Option may be exercised (to the extent that the holder
will have been entitled to do so at the date of his death) by a legatee
or legatees of the holder under his last will, or by his personal
representatives or distributees, at any time during the twelve-month
period following his death. Notwithstanding this subparagraph (f), no
Option may be exercised more than ten (10) years after the date on
which such Option was granted. For purposes of this subparagraph (f),
employment, retention or directorship of a holder will not be deemed
terminated so long as the holder is employed or retained by, or is a
director of, the Corporation, an Affiliate or another company (or an
Affiliate of another company) which has assumed this Option in a
transaction to which Section 425(a) of the Code is applicable.
(g) Changes in Capitalization; Merger; Liquidation. The
number of shares of Common Stock covered by each outstanding
Option will be proportionately adjusted, to the nearest whole share,
for any increase or decrease in the number of issued shares of Common
Stock resulting from a subdivision or combination of shares or the
payment of a stock dividend (but only on the Common Stock) or any other
increase or decrease in the number of such shares effected without
receipt of consideration by the Corporation. Any such adjustment to an
outstanding Option will be made without changing the total price
applicable to the unexercised portion of the Option, but with a
corresponding adjustment in the price for each share covered by the
Option. If the Corporation is the surviving corporation in any merger
or consolidation, each outstanding Option will pertain to and apply
to the securities to which a holder of the number of shares of Common
Stock subject to the Option would have been entitled to receive in such
merger or consolidation. A dissolution or liquidation of the
Corporation or a merger or consolidation in which the Corporation is
not the surviving corporation will cause each outstanding Option to
terminate, except for Options as to which another company assumes or
substitutes another Option in a transaction to which Section 425(a) of
the Code is applicable; provided, however, that, as to any Options
which so terminate, each holder will have the right immediately prior
to such dissolution or liquidation, or merger or consolidation in which
the Corporation is not the surviving corporation, to exercise his
Option in whole or in part without regard to any provisions deferring
exercise contained herein. To the extent that the foregoing
adjustments relate to stock or securities of the Corporation, the
adjustments will be made by the Board or Committee, whose determination
will be conclusive. Except as expressly provided in this subparagraph
(g), the holder of an Option will have no rights by reason of any
subdivision or combination of shares of stock of any class, or the
payment of any stock dividend or any other increase or decrease in the
number of shares of stock of any class,
5
<PAGE> 6
or by reason of any dissolution, liquidation, merger or consolidation
or distribution to the Corporation's shareholders of assets or stock of
another corporation; and any issue by the Corporation of shares of stock
of any class, or securities convertible into shares of stock of any
class, will not affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of shares of Common Stock
subject to the Option. The existence of the Plan and the Options
granted pursuant to the Plan will not affect in any way the right or
power of the Corporation to make or authorize any adjustment,
reclassification, reorganization or other change in its capital or
business structure, any merger or consolidation of the Corporation, any
issue of debt or equity securities having preferences or priorities as
to the Common Stock or the rights thereof, the dissolution or
liquidation of the Corporation, any sale or transfer or all or part of
the Corporation's business or assets, or any other corporate act or
proceeding.
(h) Each Option will be subject to the requirement that if
at any time the Board or Committee determines that the listing,
registration or qualification of the shares subject to the Options upon
any securities exchange or under any state or federal securities or
other law or regulation, or the consent or approval or any governmental
regulatory body, is necessary or desirable as a condition to or in
connection with the granting of the Option or the issue or purchase of
Common Stock thereunder, the Option may not be exercised, in whole or
in part, unless such listing, registration, qualification, consent or
approval will have been effected or obtained free of any conditions not
acceptable to the Board of Committee. The holder of the Option will
supply the Corporation with such certificates, representations and
information as the Corporation may request, including, without
limitation, an investment letter certifying that all shares being
purchased under an Option are being acquired for investment and not for
the purpose of resale or distribution, and will otherwise cooperate
with the Corporation in obtaining such listing, registration,
qualification, consent or approval.
(i) The grant of an Option under the Plan will be exempt
from Section 16(b) of the Securities Exchange Act of 1934, as amended,
so long as at least six (6) months elapse from the date of grant of the
Option until the date of its disposition (other than upon exercise or
conversion) or the disposition of the underlying Common Stock.
9. Termination and Amendment of the Plan. The Plan shall
terminate at midnight on July 5, 2000, ten (10) years after the date of its
initial adoption by the Board. No Option will be granted under the Plan after
that date, but Options granted before termination of the Plan will remain
exercisable thereafter until they expire or lapse according to their terms.
The Plan may be terminated, modified or amended by the stockholders or Board,
except that:
(a) no such termination, modification or amendment, without
the consent of the holder of an Option, will adversely affect his
rights under such Option; and
(b) any modification or amendment which would (i) increase
the aggregate number of shares of Common Stock which may be issued
under the Plan (other than an
6
<PAGE> 7
increase merely reflecting a change in capitalization, such as a stock,
dividend or stock split), (ii) modify the designation of persons
eligible to receive Options under the Plan, or (ii) materially increase
the benefits accruing to officers or directors will be effective only
if it is approved by the stockholders of the Corporation at the next
annual meeting of stockholders after of date of adoption by the Board
of such modification or amendment; provided, however, that in the event
Rule 16b-3 from time to time provides that such amendments to the Plan
may be made without shareholder approval, the provisions of Rule 16b-3
will control and the provisions of this paragraph 9 will automatically
be modified to comply with Rule 16b-3 as then in effect.
10. Compliance with Rule 16b-3. The Corporation will use its best
efforts to maintain this Plan, and to assure that Options are granted and
exercised under this Plan, in accordance with Rule 16b-3, as it may be amended
from time to time, and any and all successor statutes and regulations of Rule
16b-3, including, without limitation, the seeking of any appropriate amendments
to this Plan and all requisite approvals and consents of such amendments
pursuant to paragraph 9.
11. No Rights as Stockholder. A holder of an Option will have no
rights as a stockholder with respect to any Common Stock covered by his Option
until the date of issuance of a stock certificate to him by the Corporation
following exercise, in whole or in part, of the Option.
12. Corporation's Purchase of Common Stock. If a holder's
employment, retention or directorship by the Corporation or an Affiliate
terminates for Cause, the Corporation, at its discretion, may elect to purchase
from the holder or his legal representative any or all Common Stock held by the
holder as of the date of termination for a price per share equal to the Fair
Market Value of a share of Common Stock at the time the Corporation exercises
its Option. The Corporation's right to purchase the Common Stock will continue
for a period of one year from the date of the holder's termination. The
payment for shares acquired by the Corporation pursuant hereto will be made, in
cash or by check, at the address of the holder as set forth in the stock
records of the Corporation, or at such other location as the parties to the
purchase may mutually agree. Upon payment by the Corporation in compliance
with the provisions of this paragraph 12, the holder or his legal
representative will deliver to the Corporation for cancellation the
certificate(s) evidencing the Common Stock purchased by the Corporation. The
failure of the holder or his legal representative to so deliver the
certificate(s) will not impinge the validity of the Corporation's purchase.
13. Indemnification of Board or Committee. In addition to other
rights of indemnification as they may have as members of the Board, each member
of the Board or Committee will be indemnified by the Corporation against all
costs and expenses reasonably incurred by him in connection with any action,
suit or proceeding to which he may be party by reason of any action taken or
failure to act under or in connection with the Plan, or any Option granted
thereunder, and against all amounts paid by him in settlement thereof (provided
the settlement is approved by legal counsel selected by the Corporation) or
paid by him in
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<PAGE> 8
satisfaction of a judgment in any such action, suit or proceeding, except a
judgment based upon a finding of a breach of the duty of loyalty or acts or
omissions either not in good faith or which involve intentional misconduct or a
knowing violation of law. Upon the institution of any such action, suit or
proceeding, each Board or Committee member affected will notify the Corporation
in writing of the same, giving the Corporation an opportunity, at its own
expense, to handle an defend the same before the member undertakes to handle it
on his own behalf.
14. Stockholder Approval. This Plan, as amended, is subject to the
approval of the holders of a majority of the outstanding shares of Common Stock
of the Corporation at the next annual meeting of stockholders, and unless so
approved, this Plan and any Option granted hereunder will become null and void
on and after that date.
8
<PAGE> 1
EXHIBIT 4(e)
AMENDMENT NO. 2 TO THE
RESPONSE TECHNOLOGIES, INC.
1990 NON-QUALIFIED STOCK OPTION PLAN
This amendment to the 1990 Non-Qualified Stock Option Plan (the "Plan")
of Response Technologies, Inc. (the "Corporation") was adopted by the
Corporation's Board of Directors on April 10, 1995, subject to approval by the
shareholders of the Corporation at the Corporation's annual meeting to be held
on May 26, 1995. All capitalized terms used in this amendment shall have the
meanings ascribed to such terms in the Plan.
1. Section 2 of the Plan is hereby amended by adding as subsection (d) the
definition of "Change in Control" as follows:
"Change in Control" means any transaction pursuant to which (i) the
Corporation merges with another corporation, limited partnership,
limited liability company or other business entity and is not the
surviving entity; (ii) substantially all of the Corporation's assets
are sold to persons or entities not affiliated with the Corporation;
(iii) shares of Common Stock are issued to or acquired by persons (as
defined in Section 13(d)(3) under the Securities Exchange Act of 1934),
their Affiliates and associates (as defined in Rule 12b-2 under the
Securities Exchange Act of 1934) not affiliated with the Corporation
who, immediately after such issuance or acquisition, own Common Stock
comprising more than 20% of the number of shares of Common Stock issued
and outstanding immediately after such issuance or acquisition; or (iv)
any other transaction of a nature similar to the foregoing.
The remaining subsections of Section 2 are renumbered to account for the
foregoing addition.
1. Section 3 of the Plan is hereby amended by deleting the number
"3,300,000" in the first sentence of section 3 and inserting the number
"4,300,000" in its place.
2. Section 8(g) of the Plan is hereby amended as follows:
The fourth sentence of Section 8(g) is amended to read as follows: "A
dissolution or liquidation of the Corporation will cause each
outstanding Option to terminate, except for Options as to which another
company assumes or substitutes another Option in a transaction to which
Section 425(a) of the Code is applicable; provided, however, that, as
to any Options which so terminate, each holder will have the right
immediately prior to such dissolution or liquidation to exercise his
Options in whole or in part without regard to any provisions deferring
exercise contained herein."
<PAGE> 2
3. New Section 8(j) entitled Accelerated Vesting on Change in Control is
hereby added to read as follows:
Notwithstanding any other provision of this Plan or in any Option
Agreement, all Options granted pursuant hereto shall vest and become
immediately exercisable as of the time of occurrence of a Change in
Control of the Company; provided, however, that if the Change in
Control occurs in a transaction that affects the rights of any
shareholder of the Corporation (i.e. a merger, share exchange, tender
offer or sale of substantially all of the Corporation's assets) each
Option holder shall be deemed to have exercised his or her Options
immediately prior to the Change in Control with the effect that such
Option holder shall be entitled to participate in such transaction. In
such event, no consideration payable to shareholders of the Corporation
by reason of such transaction shall be delivered to an Option holder
unless and until the Option holder shall have paid the full exercise
price for the shares of Common Stock with respect to which such
exercise relates.
<PAGE> 1
EXHIBIT 4(f)
AMENDMENT NO. 3 TO THE
RESPONSE TECHNOLOGIES, INC.
1990 NON-QUALIFIED STOCK OPTION PLAN
This amendment to the 1990 Non-Qualified Stock Option Plan (the "Plan")
of Response Technologies, Inc. (the "Corporation") was adopted by the
Corporation's Board of Directors on December 16, 1995, subject to approval by
the shareholders of the Corporation at the Corporation's annual meeting to be
held on May 16, 1996. All capitalized terms used in this amendment shall have
the meanings ascribed to such terms in the Plan.
1. Section 3 of the Plan is hereby amended, in order to increase the number
of shares available under the Plan and to adjust the number of shares
previously authorized to take into account the 1 for 5 reverse stock split
effected by the Company on November 1, 1995, by deleting the number "4,300,000"
in the first sentence of section 3 and inserting the number "1,125,000" in its
place.
<PAGE> 1
EXHIBIT 4(h)
NON-QUALIFIED STOCK OPTION AGREEMENT
RESPONSE TECHNOLOGIES, INC. (the "Corporation"), a Tennessee corporation,
hereby grants to (the "Holder"), an option to purchase from the
Corporation 50,000 fully paid and nonassessable shares of the common stock,
$.002 par value, of the Corporation at an exercise price of $.3125 per share.
This option has been granted pursuant to the 1990 Non-Qualified Stock Option
Plan (the "Plan") of the Corporation adopted by its Board of Directors on July
6, 1990 and its shareholders on October 31, 1990, and is subject to all of the
terms, conditions and provisions of the Plan. A copy of the Plan is attached
hereto and made a part of this option as is fully set out herein.
This option shall be exercisable by the Holder in whole or in part as set
forth in the chart below. No option will be exercisable after the expiration
of ten (10) years from the date of grant.
No. of Grant Vesting Expiration Price
Shares Date Date Date Per Share
- ------ ----- ------- ---------- ---------
The number of shares of common stock covered by this option shall be
proportionately adjusted, to the nearest whole share, for any increase or
decrease in the number of issued shares of common stock of the Corporation
resulting from a subdivision or combination of shares or the payment of a stock
dividend (but only on the common stock) or any other increase or decrease in
the number of such shares effected without receipt of consideration by the
Corporation after the date hereof. Any such adjustment to this option shall be
made without changing the total price applicable to the unexercised portion of
the option, but with a corresponding adjustment in the price for each share
covered by the option.
If the Corporation shall be the surviving corporation in any merger or
consolidation, this option shall pertain to and apply to the securities to
which a holder of the number of shares of common stock subject to the option
would have been entitled. A dissolution or liquidation of the Corporation or a
merger or consolidation in which the Corporation is not the surviving
corporation shall cause this option to terminate, unless the surviving
company assumes or substitutes another option in a transaction to which Section
425(a) of the Internal Revenue Code of 1986, as amended, is applicable;
provided, however, that, if the option so terminates, the holder shall have the
right immediately prior to such dissolution or liquidation, or merger or
consolidation in which the Corporation is not the surviving corporation, to
exercise his option in whole or in part without regard to any provisions
deferring exercise contained herein.
1
<PAGE> 2
To the extent that the foregoing adjustments relate to stock or
securities of the Corporation, such adjustments shall be made by the Board of
Directors, whose determination shall be conclusive.
Except as herein before expressly provided, the Holder shall have no
rights by reason of any subdivision or combination of shares of stock of any
class, or the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class, or by reason of any dissolution,
liquidation, merger, consolidation or distribution to the Corporation's
shareholders of assets or stock of another corporation; and any issue by the
Corporation of shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of common stock subject to this option.
The grant of this option shall not affect in any way the right or power
of the Corporation to make or authorize any adjustment, reclassification,
reorganization or other change in its capital or business structure, any merger
or consolidation of the Corporation, any issue of debt or equity securities
having preferences or priorities as to the common stock or the rights thereof,
the dissolution or liquidation of the Corporation, any sale or transfer of any
or any part of its business or assets, or any other corporate act or proceeding.
If the Holder's employment, retention or directorship by the Corporation
or any affiliate of the Corporation, as defined in the Plan, shall terminate
for cause, the Corporation, at its option, may elect to purchase from the
Holder or his legal representative any or all common stock held by the Holder
as of the date of termination for a price per share equal to the fair market
value, as defined in the Plan, of a share of common stock at the time the
Corporation exercises its option. The Corporation's right to purchase the
common stock shall continue for a period of one year from the date of the
Holder's termination. The payment for shares acquired by the Corporation
pursuant hereto shall be made, in cash or by check, at the address of the
Holder as set forth in the stock records of the Corporation, or at such other
location as the parties to the purchase shall mutually agree. Upon payment by
the Corporation in compliance with the provisions of this paragraph, the Holder
or his legal representative shall deliver to the Corporation for cancellation
the certificate or certificates evidencing the common stock purchased by the
Corporation. The failure of the Holder or his legal representative to so
deliver such certificate or certificates shall not impinge the validity of the
Corporation's purchase. The term "cause" shall mean habitual drug use or
drunkenness, embezzlement of Corporation funds, conduct which is demonstrably
injurious to the Corporation, or conviction of a felony, all as determined in
good faith by the Board of Directors or by the committee appointed to
administer the Plan.
Unless the shares subject to this option have been registered under the
Securities Act of 1933, as amended, and the prospectus filed with such
registration statement is current, the Holder's right to exercise the option
granted hereby shall be subject to the delivery to the Corporation upon such
exercise of a letter, in form satisfactory to the Corporation's counsel: (a)
representing that the Holder intends to acquire the shares of stock issuable
upon such exercise for investment for his own account and without a view
2
<PAGE> 3
to the resale or distribution thereof; and (b) agreeing that such shares shall
not be sold or transferred by him in the absence of an effective registration
statement filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, with respect to such transfer, except upon
furnishing an opinion of counsel satisfactory to the Corporation that such sale
or transfer is not required to be registered under that Act or any applicable
state securities law.
Granted as of the day of
HOLDER; RESPONSE TECHNOLOGIES, INC.
By:
- ------------------------------ ------------------------------
Secretary
Date: Date:
------------------------ ---------------------------
3
<PAGE> 1
EXHIBIT 5
[BAKER, DONELSON, BEARMAN & CALDWELL LETTERHEAD]
October 10, 1996
Board of Directors
Response Oncology, Inc.
1775 Moriah Woods Blvd.
Memphis, Tennessee 38117
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Response Oncology, Inc., a Tennessee
corporation (the "Company") in connection with the registration of 825,000
shares of the common stock, $.01 par value per share (the "Common Stock"), of
the Company on behalf of the Company. The Company has filed a Registration
Statement on Form S-8 pursuant to the Securities Act of 1933, as amended (the
"Registration Statement").
We have acted as counsel for the Company in connection with the
proposed transaction and have assisted with the preparation of the Registration
Statement and various corporate documents related thereto. We have examined
and relied upon the following documents and instruments for the purpose of
giving this opinion, which, to our knowledge and in our judgment, are all of
the documents and instruments that are necessary for us to examine for such
purpose.
1. The Registration Statement and all exhibits thereto;
2. A copy of the Company's Charter certified by the Tennessee
Secretary of State;
3. A copy of the Company's Bylaws certified by the Secretary of
the Company;
4. The minute book of the Company; and
<PAGE> 2
Board of Directors
Response Oncology, Inc.
October 10, 1996
Page 2
5. The stock records of the Company.
In giving our opinion, we have assumed without investigation the
authenticity of any document or instrument submitted to us as an original, the
conformity to the authentic original of any document or instrument submitted to
us as a certified, conformed or photostatic copy and the genuineness of all
signatures on such originals or copies.
Based upon the foregoing and having regard for such legal
considerations as we deem relevant, we are of the opinion that (i) the Company
is a corporation duly incorporated and validly existing under the laws of the
State of Tennessee and (ii) the Common Stock, when issued in accordance with
the Registration Statement, will be validly issued, fully paid and
nonassessable.
Our opinion is subject to the following qualifications and limitations:
i. The opinions expressed herein are subject to the effect of
applicable bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights and equitable principles limiting the
availability of equitable remedies on the enforceability of contracts,
agreements and instruments.
ii. Members of our firm are qualified to practice law in the State
of Tennessee and nothing contained herein shall be deemed to be an opinion as
to any law, rule or regulation other than the law of the State of Tennessee and
the federal law of the United States.
iii. The opinions set forth herein are expressed as of the date
hereof and, except during the time prior to the effectiveness of the
Registration Statement filed with the Securities and Exchange Commission, we
disclaim any undertaking to advise you of any changes which may subsequently be
brought to our attention in the facts and the law upon which such opinions are
based.
This opinion is furnished by us solely for your benefit and is intended
to be used as an exhibit to the Registration Statement filed with the
Securities and Exchange Commission. Except for such use, neither this opinion
nor copies hereof may be relied upon by, delivered to, or quoted in whole or in
part without our prior written consent.
We consent to the use of our opinion as an exhibit to the Registration
Statement.
<PAGE> 3
Board of Directors
Response Oncology, Inc.
October 10, 1996
Page 3
In giving these consents, we do not admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
BAKER, DONELSON, BEARMAN & CALDWELL
By: /s/ John Good
------------------------------------
John A. Good, shareholder
<PAGE> 1
EXHIBIT 24
Accountants' Consent
The Board of Directors
Response Oncology, Inc.
We consent to incorporation by reference in the Registration Statements on Form
S-8 of Response Oncology, Inc. of our report dated January 23, 1996, relating to
the consolidated balance sheets of Response Oncology, Inc. and subsidiaries as
of December 31, 1995 and 1994, and the related consolidated statements of
operations, stockholders' equity, and cash flows for the years then ended,
which report appears in the December 31, 1995 annual report on Form 10-K of
Response Oncology, Inc.
KPMG Peat Marwick LLP
Memphis, Tennessee
October 11, 1996
