<PAGE> 1
As filed with the Securities and Exchange Commission on
July 3, 1996.
- --------------------------------------------------------------------------------
REGISTRATION STATEMENT NO._______________
********************************************************************************
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
IN HOME HEALTH, INC.
(Exact name of issuer as specified in its charter)
Minnesota 41-1458213
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
601 Lakeshore Parkway, Suite 500
Minnetonka, Minnesota 55305
(Address of Principal (Zip Code)
Executive Offices)
IN HOME HEALTH, INC.
1995 STOCK OPTION PLAN
(Full title of the plan)
Robert Horner
In Home Health, Inc.
601 Lakeshore Parkway, Suite 500
Minnetonka, MN 55305
(Name and address of agent for service)
(612) 449-7500
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
********************************************************************************
Proposed Proposed
Title of Maximum Maximum Amount
Each Class of Amount Offering Aggregate Of
Securities To Be Price Per Offering Registration
To Be Registered Registered Share* Price* Fee*
- ---------------- ---------- ------ ------ ----
Common Stock, 1,300,000 Shs. $2.16 $2,808,000 $ 968.28
par value of $.01
per share
********************************************************************************
(*) Estimated pursuant to Rule 457 solely for the purpose of calculating
the registration fee. Estimate based on the average of the high and low
share prices for the Company's Common Stock on June 28, 1996, as
reported on the NASDAQ National Market System.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Except as set forth below with respect to Items 4, 7, 8 and 9 of Form
S-8, the contents of the registration statements on Registrant's Annual Report
and Form 10-K for fiscal year ended September 30, 1995 containing audited
financial statements for the fiscal year ended September 30, 1995, Form 10-Q for
the fiscal quarters ended December 31, 1995 and March 31, 1996, and the
description of the Registrant's common stock appearing in the Registrant's
Post-Effective Amendment No. 1 on Form S-3 to Form S-1 effective August 28, 1991
(File Nos. 33-35424 and 33-36572).
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
completion or termination of this offering of shares of Common Stock 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 6. Indemnification of Officers and Directors.
The Registrant's Articles provide that no director of the Registrant
shall personally be liable to the Registrant or its shareholders for monetary
damages for breach of fiduciary duty by such director as a director; provided,
however, that such provision in the Registrant's Articles shall not eliminate or
limit the liability of the director to the extent provided by applicable law (i)
for any breach of the director's duty of loyalty to the Registrant or its
shareholders, (ii) for acts of misconduct or a knowing violation of law, (iii)
under Sections 302A.559 (liability of directors for illegal distribution) and
80A.23 (liability for violations of state securities laws) of the Minnesota
Statutes, (iv) for any transaction from which the director derived an improper
personal benefit, or (v) for any act or omission occurring prior to the date
when such provision of the Registrant's Articles became effective. The
Registrant's Articles further provide that if the Minnesota Business Corporation
Act is amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Registrant shall be eliminated or limited to the fullest extent permitted by the
Minnesota Business Corporation Act as so amended.
2
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Minnesota state law provides for indemnification of the Registrant's
officers, directors, employees and agents. Section 302A.521 of the Minnesota
Statutes requires, among other things, the indemnification of persons made or
threatened to be made a party to a proceeding by reason of acts or omissions
performed in their official capacity as an officer. director, employee or agent
of the corporation against judgments, penalties and fines (including attorneys'
fees) if such person is not otherwise indemnified, acted in good faith, received
no improper benefits, reasonably believed that such conduct was in the best
interests of the corporation, and, in the case of criminal proceedings, had no
reason to believe the conduct was unlawful. In addition, Section 302A.521,
subdivision 3, of the Minnesota Statutes requires payment by the corporation,
upon written request, of reasonable expenses made in advance of final
disposition in certain instances if a decision as to required indemnification is
made by a disinterested majority of the Board of Directors present at a meeting
at which a disinterested quorum is present, or by a designated committee of the
Board, by special legal counsel, by the shareholders, or by a court.
The Registrant has insurance coverage totaling $10,000,000 per year
which provides reimbursement in the event it is required to pay out amounts for
costs of defense, settlements and judgments pursuant to the obligation to
indemnify its officers and directors.
Item 7. Exemptions from Registration Claimed. None.
Item 8. Exhibits.
4 In Home Health, Inc. 1995 Stock Option Plan
5 Opinion regarding legality of shares to be offered.
23(i) Consent of Deloitte S. Touche, L.L.P.
23(ii) Consent of James H. Rempe, Esq. (included in Exhibit 5)
24 Powers of Attorney authorizing execution of registration
statement of Form S-8 on behalf of certain directors of
Registrant.
3
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Item 9. Undertaking.
(a) Rule 415 Offering.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To 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 set forth in the registration statement;
(iii) To 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;
provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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(b) Filings incorporating subsequent Exchange Act documents by
reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or 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 at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Request for acceleration of effectiveness or filing of
registration statement on Form S-8.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant 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
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant 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 Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
5
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies 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 Minnetonka,
State of Minnesota, on this 3rd day of July, 1996.
IN HOME HEALTH, INC.
By: *
------------------------
Mark Gildea,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
* July 3, 1996
- ----------------------------- Chief Executive Officer
Mark L. Gildea and Director
(Principal Executive Officer)
* President and July 3, 1996
- ----------------------------- Director
Judy M. Figge
*
- ----------------------------- Executive Vice President, July 3, 1996
Kenneth J. Figge Chief Financial Officer,
Secretary, and Director
(Principal Financial Officer)
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* July 2, 1996
- ----------------------------- Director
James J. Lynn
* July 2, 1996
- ----------------------------- Director
Joseph Buckley
* July 2, 1996
- ----------------------------- Director
Donald C. Tom
/s/ James H. Rempe Director July 2, 1996
- -----------------------------
James H. Rempe
* By: /s/ James H. Rempe
-----------------------
James H. Rempe
Attorney-in-fact
7
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EXHIBITS INDEX
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
- ------------ ----------- ----------
4 In Home Health, Inc. 1995 Stock Option Plan 9
5 Opinion regarding legality of shares 21
to be offered.
23(i) Consent of Deloitte & Touche, L.L.P. 22
23(ii) Consent of James H. Rempe, Esq.
(included in Exhibit 5)
24 Powers of Attorney authorizing execution of
registration statement of Form S-8 on behalf
of certain directors of Registrant. 23
8
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EXHIBIT 4
IN HOME HEALTH, INC.
STOCK OPTION PLAN
Article I. Establishment and Purpose
1.1 Establishment. In Home Health, Inc., a Minnesota corporation
("Company"), hereby establishes a stock option plan for key employees selected
for participation in the Plan which shall be known as the "1995 STOCK OPTION
PLAN" (the "Plan"). It is intended that certain of the options issued pursuant
to the Plan to employees of the Company may constitute incentive stock options
within the meaning of section 422A of the Internal Revenue Code, and that other
options, if any, issued pursuant to the Plan shall constitute nonstatutory
options. The Board shall determine which options are to be incentive stock
options and which are to be nonstatutory options and shall enter into option
agreements with recipients accordingly.
1.2 Purpose. The purpose of this Plan is to enhance stockholder
investment by attracting, retaining and motivating key employees of the Company,
and to encourage stock ownership by such employees by providing them with a
means to acquire a proprietary interest in the Company's success.
Article II. Definitions
2.1 Definitions. Whenever used herein, the following terms shall have
the respective meanings set forth below, unless the context clearly requires
otherwise, and when said meaning is intended, the term shall be capitalized.
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the Committee provided for by Article IV
hereof, which may be created at the discretion of the Board.
(d) "Company" means In Home Health, Inc., a Minnesota corporation.
(e) "Date of Exercise" means the date the Company receives notice, by
an Optionee, of the exercise of an Option pursuant to section 8.1
of this Plan. Such notice shall indicate the number of shares of
Stock the Optionee intends to exercise.
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(f) "Employee" means any person, including an officer or director of
the Company, who is employed by the Company.
(g) "Fair Market Value" means the fair market value of Stock upon which
an option is granted under this Plan.
(h) "Incentive Stock Option" means an Option granted under this Plan
which is not intended to qualify as an incentive stock option
within the meaning of Section 422A of the Code.
(i) Nonstatutory Option" means an Option granted under this Plan which
is not intended to qualify as an incentive stock option within the
meaning of Section 422A of the Code. Nonstatutory Options may be
granted at such times and subject to such restrictions as the Board
shall determine without conforming to the statutory rules of
Section 422A of the Code applicable to incentive stock options.
(j) "Option" means the right, granted under this Plan, to purchase
Stock of the Company at the option price for a specified period of
time. For purposes of this Plan, an Option may be either an
Incentive Stock Option or a Nonstatutory Option.
(k) "Optionee" means an Employee designated by the Board to participant
in the Plan.
(l) "Parent Corporation" shall have the meaning set forth in Section
425(e) of the Code with the Company being treated as the employer
corporation for purposes of this definition.
(m) "Subsidiary Corporation" shall have the meaning set forth in
Section 425(f) of the Code with the Company being treated as the
employer corporation for purposes of this definition.
(n) Significant Shareholder" means an individual who, within the
meaning of Section 422A(b)(6) of the Code, owns stock possessing
more than ten percent of the total combined voting power of all
classes of stock of the Company or of any Parent Corporation or
Subsidiary Corporation of the Company. In determining whether an
individual is a Significant
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Shareholder, an individual shall be treated as owning stock owned by
certain relatives of the individual and certain stock owned by
corporations in which the individual is a shareholder, partnerships in
which the individual is a partner, and estates or trusts of which the
individual is a beneficiary, all as provided in Section 425(d) of the
Code.
(o) "Stock" means the Common Stock of the Company.
2.2 Gender and Number. Except when otherwise indicated by the context,
any masculine terminology when used in this Plan also shall include the feminine
gender, and the definition of any term herein in the singular also shall include
the plural.
Article III. Eligibility and Participation
3.1 Eligibility and Participation. All Employees are eligible to
participate in this Plan and receive Incentive Stock Options and/or Nonstatutory
Options hereunder. Optionees in the Plan shall be selected by the Board from
among those Employees who, in the opinion of the Board, are in a position to
contribute materially to the Company's and its Subsidiary Corporations'
continued growth and development and to its long-term financial success.
Article IV. Administration
4.1 Administration. The Plan shall be administered by the Board of
Directors or by a Committee of two or more persons who are disinterested persons
within the meaning of SEC Regulation 16b-3. The Committee shall be appointed by
the Board and shall serve at the pleasure of the Board. Where a Committee has
been created by the Board, references in the Plan to actions to be taken by the
Board shall be deemed to refer to the Committee, except where limited by the
Plan or by the Board.
The Committee shall have the power and authority:
(i) to select the officers and other key employees of the Company
and its Subsidiaries to whom Options may from time to time be
granted hereunder;
(ii) to determine whether and to what extent Incentive Stock
Options, Nonstatutory Options, or a combination of the
foregoing, are to be granted hereunder;
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(iii) to determine the number of shares to be covered by each such
Option granted hereunder; and
(iv) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of Options granted hereunder.
The Committee shall also have the authority to adopt, alter and repeal
such administrative rules, guidelines and practices governing the Plan as it
shall, from time to time, deem advisable; to interpret the terms and provisions
of the Plan and any Option issued under the Plan (and any agreements relating
thereto); and to otherwise supervise the administration of the Plan. The
Committee may delegate its authority to officers of the Company for the
purpose of selecting employees who are not officers of the Company for
purposes of (i) above.
All decisions made by the Committee pursuant to the provisions of the
Plan shall be final and binding on all persons, including the Company and
Optionees.
Article V. Stock Subject to the Plan
5.1 Number. The total number of shares of Stock hereby made available
and reserved for issuance under the Plan shall be 650,000. The aggregate number
of shares of Stock available under this Plan shall be subject to adjustment as
provided in section 5.3. The total number of shares of Stock may be authorized
unissued shares of Stock, or shares acquired by purchase as directed by the
Board from time to time in its discretion, to be used for issuance upon exercise
of Options granted hereunder.
5.2 Unused Stock. If an Option shall expire or terminate for any reason
without having been exercised in full, the unpurchased shares of Stock subject
thereto shall (unless the Plan shall have terminated) become available for other
Options under the Plan.
5.3 Adjustment in Capitalization. In the event of any change in the
outstanding shares of Stock by reason of a stock dividend or split,
recapitalization, reclassification, or other similar corporate change, the
aggregate number of shares of Stock set forth in Section 5.1 shall be
appropriately adjusted by the Board, whose determination shall be conclusive;
provided however, that fractional shares shall be rounded to the nearest whole
share. In any such case, the number and kind of shares that are subject to any
Option (including any Option outstanding after termination of employment) and
the Option price per share shall be proportionately and appropriately adjusted
without any change in the aggregate Option price to be paid therefor upon
exercise of the Option.
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Article VI. Duration of the Plan
6.1 Duration of the Plan. Subject to the stockholder approval, the Plan
shall be in effect for ten years from the date of its adoption by the Board. Any
Options outstanding at the end of said period shall remain in effect in
accordance with their terms. The Plan shall terminate before the end of said
period, if all Stock subject to it has been purchased pursuant to the exercise
of Options granted under the Plan.
Article VII. Terms of Stock Options.
7.1 Grant of Options. Subject to section 5.1, Options may be granted to
Employees at any time and from time to time as determined by the Board. The
Board shall have complete discretion in determining the number of Options
granted to each Optionee. In making such determinations, the Board may take into
account the nature of services rendered by such Employees, their present and
potential contributions to the Company, and such other factors as the Board in
its discretion shall deem relevant. The Board also shall determine whether an
Option is to be an Incentive Stock Option or a Nonstatutory Option.
The total Fair Market Value (determined at the date of grant) of shares
of Stock with respect to which Incentive Stock Options are exercisable for the
first time by the Optionee during any calendar year under all plans of the
Company under which Incentive Stock Options may be granted (and all such plans
of any Parent Corporations and any Subsidiary Corporations of the Company) shall
not exceed $100,000. (Hereinafter, this limitation is sometimes referred to as
the "$100,000 Limitation").
The written Option agreements with the Optionees shall contain such
provisions as may be necessary to implement the $100,000 Limitation, taking into
account the restrictions on the Optionee which already exist upon the Option or
Options held by the Optionee which are subject to the $100,000 Limitation. Where
an Option holder already holds Options subject to the $100,000 Limitation, and
the Optionee is granted a new Incentive Stock Option under this plan, the Board
or Committee may, if permitted by the Code and the regulations and
interpretations thereunder, impose the restrictions upon exercisability which
are necessary to implement the $100,000 Limitation in whole or in part upon the
previously issued Option or Options to accelerate the exercisability of the
newly granted Incentive Stock Option.
Nothing in this Article VII of the Plan shall be deemed to prevent the
grant of Options in excess of the $100,000 Limitation where such excess amount
is treated as a Nonstatutory Option.
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The Board is expressly given the authority to issue amended Options
with respect to shares of Stock subject to an Option previously granted
hereunder. An amended Option amends the terms of an Option previously granted
and thereby supersedes the previous Option.
7.2 No Tandem Options. Where an Option granted under this Plan is
intended to be an Incentive Stock Option, the Option shall not contain terms
pursuant to which the exercise of the Option would affect the Optionee's right
to exercise another Option, or vice versa, such that the Option intended to be
an Incentive Stock Option would be deemed a tandem stock option within the
meaning of the regulations under Section 422A of the Code.
7.3 Option Agreement. As determined by the Board on the date of grant,
each Option shall be evidenced by an Option Agreement (the "Option Agreement")
that includes the nontransferability provisions of Section 10.2 hereof and
specifies: whether the Option is an Incentive Stock Option or a Nonstatutory
Option; the Option price; the duration of the Option; the number of shares of
Stock to which the Option applies; any vesting or serial exercise restrictions
which the Board may impose; and any other terms or conditions which the Board
may impose.
All Option Agreements shall incorporate the provisions of this Plan by
reference, with certain provisions to apply depending upon whether the Option
Agreement applies to an Incentive Stock Option or to a Nonstatutory Option.
7.4 Option Price. No Incentive Stock Option granted pursuant to this
Plan shall have an Option price that is less than the Fair Market Value of Stock
on the date the Option is granted. Incentive Stock Options granted to
Significant Shareholders shall have an Option Price of not less than 110 percent
of the Fair Market Value of Stock on the date of grant. The Option price for
Nonstatutory Options shall be established by the Board and shall not be subject
to the restrictions applicable to Incentive Stock Options.
7.5 Term of Options. Each Option shall expire at such time as the Board
shall determine when its is granted, provided however that no Option shall be
exercisable later than the tenth anniversary date of its grant. By its terms, an
Incentive Stock Option granted to a Significant Shareholder shall not be
exercisable after five years from the date of the grant.
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7.7 Payment. Payment for all shares of Stock shall be made at the time
that an Option, or any part thereof, is exercised, and no shares shall be issued
until full payment therefore has been made. Payment shall be made (i) in cash,
or (ii) if acceptable to the Board, in stock or in some other form; provided,
however, in the case of an Incentive Stock Option, that said other form of
payment does not prevent the Option from qualifying for treatment as an
"incentive stock option" within the meaning of the Code.
Article VIII. Written Notice, Issuance of
Stock Certificates, Stockholder Privileges
8.1 Written Notice. An Optionee wishing to exercise an Option shall
give written notice to the Company, in the form and manner prescribed by the
Board. Full payment for the shares exercised pursuant to the Option must
accompany the written notice.
8.2 Issuance of Stock Certificates. As soon as practicable after the
receipt of written notice and payment, the Company shall deliver to the Optionee
or to a nominee of the Optionee a certificate or certificates for the requisite
number of shares of Stock.
8.3 Privileges of a Stockholder. An Optionee or any other person
entitled to exercise an Option under this plan shall not have stockholder
privileges with respect to any Stock covered by the Option until the date of
issuance of a stock certificate for such stock.
Article IX. Termination of Employment
9.1 Death. If an Optionee's employment terminates by reason of death,
the Option may thereafter be exercised at any time prior to the expiration date
of the Option or within 12 months after the date of such death, whichever period
is the shorter, by the person or persons entitled to do so under the Optionee's
will or, if the Optionee shall fail to make a testamentary disposition of an
Option or shall die intestate, the Optionee's legal representative or
representatives. The Option shall be exercisable only to the extent that such
option was exercisable as of the date of death.
9.2 Termination Other than for Cause or Due to Death. In the event of
an Optionee's termination of employment, other than by reason of death, the
Optionee may exercise such portion of his Option as was exercisable by him at
the date of such termination (the "Termination Date") at any time within
three(3) months of the
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Termination Date; provided, however, that where the Optionee is terminated due
to disability within the meaning of Code Section 422A(c)(7), he may exercise
such portion of his Option as was exercisable by him on his Termination Date
within one year of his Termination Date. In any event, the Option cannot be
exercised after the expiration of the term of the Option. Options not exercised
within the applicable period specified above shall terminate.
In the case of an Employee, a change of duties or position within the
Company or an assignment of employment in a Subsidiary Corporation or Parent
Corporation of the Company, if any, or from such a Corporation to the Company,
shall not be considered a termination of employment for purposes of this Plan.
The Option Agreements may contain such provisions as the Board shall approve
with reference to the effect of approved leaves of absence upon termination of
employment.
9.3 Termination for Cause. In the event of an Optionee's termination of
employment by the Company for cause, any Option or Options held by him under the
Plan, to the extent not exercised before such termination, shall forthwith
terminate.
Article X. Rights of Optionees
10.1. Service. Nothing in this Plan shall interfere with or limit in
any way the right of the Company to terminate any Employee's employment at any
time, nor confer upon any Employee any right to continue in the employ of the
Company.
10.2 Nontransferability. All Options granted under this Plan shall be
nontransferable by the Optionee, other than by will or the laws of descent and
distribution, and shall be exercisable during the Optionee's lifetime only by
the Optionee.
Article XI. Optionee's
Transfer or Leave of Absence
11.1 Optionee's Transfer or Leave of Absence. For Plan purposes--
(a) a transfer of an Optionee from the Company to a Subsidiary
Corporation or Parent Corporation, or from one such
corporation to another, or
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(b) a leave of absence for an Optionee (i) which is duly
authorized in writing by the Company, and (ii) if the Optionee
holds an Incentive Stock Option, which qualifies under the
applicable regulations under the Code which apply in the case
of incentive stock options,
shall be deemed a termination of employment. However, under no
circumstances may an Optionee exercise an Option during any leave of
absence, unless authorized by the Board.
Article XII. Amendment,
Modification, and Termination of the Plan
12.1 Amendment, Modification, and Termination of the Plan. The Board
may at any time terminate, and from time to time any may amend or modify the
Plan, provided, however, that no such action of the Board, without approval of
the stockholder, may--
(a) increase the total amount of Stock which may be purchased
through Options granted under the Plan, except as provided in
section 5.1;
(b) change the class of Employees eligible to receive Options;
No amendment, modification, or termination of the Plan shall in any manner
adversely affect any outstanding Option under the Plan without the consent of
the Optionee holding the Option.
Article XIII. Merger or Consolidation
13.1 Merger or Consolidation. (a) Subject to any required action by the
stockholders, if the Company shall be the surviving corporation in any merger or
consolidation, any Option granted hereunder shall pertain to and apply to the
Securities to which a holder of the number of shares of Stock subject to the
Option would have been entitled in such merger or consolidation.
(b) A dissolution or a liquidation of the Company or a merger and
consolidation in which the Company is not the surviving corporation shall cause
every Option outstanding hereunder to terminate as of the effective date of such
dissolution, liquidation, merger or consolidation. However, the Optionee either
(i) shall be offered a firm commitment whereby the resulting or surviving
corporation in a merger or consolidation will tender to the Optionee an option
(the "Substitute Option") to purchase
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<PAGE> 10
its shares on terms and conditions both as to number of shares and otherwise,
which will substantially preserve to the Optionee the rights and benefits of the
Option outstanding hereunder granted by the Company, or (ii) shall have the
right immediately prior to such dissolution, liquidation, merger, or
consolidation to exercise any unexercised Options whether or not then
exercisable, subject to the provisions of this Plan. The Board shall have
absolute and uncontrolled discretion to determine whether the Optionee has been
offered a firm commitment and whether the tendered Substitute Option will
substantially preserve to the Optionee the rights and benefits of the Option
outstanding hereunder. In any event, any Substitute Option for an Incentive
Stock Option shall comply with the requirements of Code Section 425(a).
Notwithstanding the foregoing provisions providing that Options shall
or may become immediately exercisable in full upon the dissolution or
liquidation of the Company, or in certain mergers or consolidations, Incentive
Stock Options shall become immediately exercisable in full only to the extent
that this is permitted under the $100,000 Limitation as this Limitation is
interpreted by the Code and the regulations and decisions thereunder. To the
extent an Incentive Stock Option is not exercisable due to this Limitation, the
unexercised portion of the Option shall terminate. However, in the case of a
merger, consolidation, or other form of reorganization, the surviving
corporation or its parent corporation shall have the right, but not the
obligation, to issue Substitute Options for the portion not exercisable, as
provided above.
Article XIV. Securities Registration
14.1 Securities Registration. In the event that the Company shall deem
it necessary or desirable to register under the Securities Act of 1933, as
amended, or any other applicable statute, any Options or any Stock with respect
to which an Option may be or shall have been granted or exercised, or to qualify
any such Options or Stock under the Securities Act of 1933, as amended, or any
other statute, then the Optionee shall cooperate with the Company and take such
action as is necessary to permit registration or qualified of such Options or
Stock.
Unless the Company has determined that the following representation is
unnecessary, each person exercising an Optionee under the Plan may be required
by the Company, as a condition to the issuance of the shares pursuant to
exercise of the Option, to make a representation in writing (a) that he is
acquiring such shares for his own account for investment and not with a view to,
or for sale in connection with, the distribution of any part thereof, and (b)
that before any transfer in connection with the resale of such shares, he will
obtain the written opinion of counsel for the Company, or other counsel
acceptable to the Company, that such shares may be transferred. The Company may
also require that the certificates representing such shares contain legends
reflecting the foregoing.
18
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Article XV. Tax Withholding
15.1 Tax Withholding. Whenever shares of Stock are to be issued in
satisfaction of Options exercised under this Plan, the Company shall have the
power to require the recipient of the Stock to remit to the Company in amount
sufficient to satisfy federal, state, and local withholding tax requirements.
Article XVI. Indemnification
16.1 Indemnification. To the extent permitted by law, each person who
is or shall have been a member of the Board shall be indemnified and held
harmless by the Company against and from any loss, cost, liability, or expense
that may be imposed upon or reasonably incurred by him in connection with or
resulting from any claim, action, suit, or proceeding to which he may be a party
or in which he may be involved by reason of any action taken or failure to act
under the Plan and against and from any and all amounts paid by him in
settlement thereof, with the Company's approval, or paid by him in satisfaction
of judgment in any such action, suit, or proceeding against him, provided he
shall give the Company an opportunity, at its own expense, to handle and defend
it on his own behalf. The foregoing right of indemnification to which such
persons may be entitled under the Company's articles of incorporation or bylaws,
as a matter of law, or otherwise, or any power that the Company may have to
indemnify them to hold them harmless.
Article XVII. Requirements Of Law
17.1 Requirements of Law. The granting of Options and the issuance of
shares of Stock upon the exercise of any Option shall be subject to all
applicable laws, rules and regulations and to such approvals by any governmental
agencies or national securities exchange as may be require.
17.2 Governing Law. The Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of Minnesota.
Article XVIII. Effective Date of Plan
18.1 Effective Date. The Plan shall be effective on April 15, 1987, the
date of its adoption by the Board.
Article XIX. Compliance with Code
19
<PAGE> 12
19.1 Compliance with Code. Incentive Stock Options granted hereunder
are intended to qualify as "incentive stock options" under Code Section 422A. If
any provision of this Plan is susceptible to more than one interpretation, such
interpretation shall be given thereto as is consistent with Incentive Stock
Options granted under this Plan being treated as incentive stock options under
the Code.
Article XX. No Obligation to Exercise Option.
20.1 No Obligation to Exercise. The granting of an Option shall impose
no obligation upon the holder thereof to exercise such Option.
IN HOME HEALTH, INC.
By /S/ Kenneth J. Figge
---------------------------
Kenneth J. Figge, Secretary
Adopted by the Board of Directors: November 8, 1994
20
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EXHIBIT 5
July 3, 1996
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
RE: In Home Health, Inc.
Registration Statement on Form S-8
Gentlemen:
I am Director of Legal Affairs of In Home Health, Inc. (the "Company")
and have acted for the Company in connection with the preparation of the
Company's Registration Statement on Form S-8 filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended. The Registration Statement covers shares of the Company's Common Stock,
$.01 par value, offered under the Company's 1995 Stock Option Plan (the "Plan").
In connection with the rendering of the opinion set forth below, I have
reviewed the records of the Company, the minutes of the meetings of the
stockholders and directors of the Company and such other records and documents
as was necessary in my judgment to so render the following opinion.
Based on the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated and existing
under the laws of the State of Minnesota; and
2. The shares of Common Stock of the Company offered to the
holders under the exercise of options under the Plan, have
been or will be legally issued, fully paid and nonassessable.
I hereby consent to the filing of a copy of this opinion with the
Commission as an exhibit to the Registration Statement referred to above.
Very truly yours,
Robert Horner
Director of Legal Affairs
21
<PAGE> 1
EXHIBIT 23(i)
INDEPENDENT AUDITOR'S CONSENT
In Home Health, Inc.
We hereby consent to the incorporation by reference in this registration
statement of our report dated November 22, 1995, except for the second
paragraph of Note 3, as to which the date is December 14, 1995 appearing in the
Annual Report on Form 10-K of In Home Health, Inc. for the year ended September
30, 1995.
DELOITTE & TOUCHE L.L.P.
Minneapolis, Minnesota
July 3, 1996
22
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EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints JAMES H. REMPE his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of In Home Health Inc. (the "Company") delivered pursuant
to the Company's 1995 Stock Option Plan 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 purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute may lawfully do or cause to be done
by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th
day of June, 1996.
/S/ Mark L. Gildea
-----------------------------------
Mark L. Gildea
Chief Executive Officer and Director
23
<PAGE> 2
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints JAMES H. REMPE his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of In Home Health Inc. (the "Company") delivered pursuant
to the Company's 1995 Stock Option Plan 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 purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute may lawfully do or cause to be done
by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 12th
day of June, 1996.
/S/ Judy M. Figge
-----------------------------------
Judy M. Figge
President and Director
24
<PAGE> 3
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints JAMES H. REMPE his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of In Home Health Inc. (the "Company") delivered pursuant
to the Company's 1995 Stock Option Plan 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 purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute may lawfully do or cause to be done
by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 12th
day of June, 1996.
/S/ Kenneth J. Figge
-----------------------------------
Kenneth J. Figge
Executive Vice President,
Chief Financial Officer,
Secretary, and Director
25
<PAGE> 4
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints JAMES H. REMPE his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of In Home Health Inc. (the "Company") delivered pursuant
to the Company's 1995 Stock Option Plan 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 purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute may lawfully do or cause to be done
by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 7th
day of June, 1996.
/S/ James J. Lynn
-----------------------------------
James J. Lynn
Director
26
<PAGE> 5
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints JAMES H. REMPE his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of In Home Health Inc. (the "Company") delivered pursuant
to the Company's 1995 Stock Option Plan 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 purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute may lawfully do or cause to be done
by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th
day of June, 1996.
/S/ Joseph Buckley
-----------------------------------
Joseph Buckley
Director
27
<PAGE> 6
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints JAMES H. REMPE his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign Registration Statements or
amendments (including post-effective amendments) thereto with respect to the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock, $.01 par value, of In Home Health Inc. (the "Company") delivered pursuant
to the Company's 1995 Stock Option Plan 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 purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute may lawfully do or cause to be done
by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 10th
day of June, 1996.
/S/ Donald D. Tomasso
-----------------------------------
Donald C. Tomasso
Director
28
