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As filed with the Securities and Exchange Commission on September 19, 1997.
Registration No. 333-___________
UNITED STATES
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 registrant as specified in its charter)
MINNESOTA 41-1458213
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
601 CARLSON PARKWAY, SUITE 500
MINNETONKA, MINNESOTA 55305
(Address of Principal Executive Offices and zip code)
----------------------------
IN HOME HEALTH, INC.
1991 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
----------------------------
Copy to:
Kari Schell Richard D. McNeil
601 Carlson Parkway, Suite 500 Kristin L. Johnson
Minnetonka, Minnesota 55305 Lindquist & Vennum
(612) 449-7500 4200 IDS Center
(Name, address and telephone 80 S. Eighth Street
number, including area code, Minneapolis, MN 55402
of agent for service) (612) 371-3266
---------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee
- --------------------------------------------------------------------------------
Common Stock, 800,000 shares(2) $1.375 $1,100,000 $333.30
$.01 par value,
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) and based upon the closing sale price of
the Company's Common Stock on the Nasdaq National Market on September 17,
1997.
(2) A total of 700,000 shares were previously registered on Form S-8 (File Nos.
33-44771 and 33-75830) on December 23, 1991 and February 28, 1994,
respectively, and 800,000 shares are being registered herewith.
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INCORPORATION OF CONTENTS OF REGISTRATION STATEMENT
BY REFERENCE
Registration Statements on Form S-8 (File Nos. 33-44771 and 33-75830) were
filed with the Securities and Exchange Commission on December 23, 1991 and
February 28, 1994, respectively, covering the registration of 700,000 shares
authorized for issuance under the Company's 1991 Employee Stock Purchase Plan
(the "Plan"). Pursuant to General Instruction E of Form S-8 and Rule 429, this
Registration Statement is being filed to register an additional 800,000 shares
authorized under the Plan. An amendment to the Plan to increase the number of
shares under the Plan by 800,000 shares was authorized by the Company's Board of
Directors on August 13, 1996 and was approved by the Company's shareholders on
March 6, 1997. This Registration Statement should also be considered a
post-effective amendment to the prior Registration Statements. The contents of
the prior Registration Statements are incorporated herein by reference.
PART I
Pursuant to Part I of Form S-8, the information required by Items 1 and 2
of Form S-8 is not filed as a part of this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
are hereby incorporated by reference herein:
(a) The Annual Report of the Company on Form 10-K for the fiscal year
ended September 30, 1996.
(b) The Definitive Proxy Statement dated January 30, 1997 for the 1997
Annual Meeting of Shareholders held March 6, 1997.
(c) The Quarterly Reports of the Company on Form 10-Q for the quarters
ended December 31, 1996, March 31, 1997 and June 30, 1997.
(d) The description of the Company's Common Stock as set forth in the
Company'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), including
any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registration's Articles provide that no director of the Registration
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.
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 $15,000,000 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. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
4.1 In Home Health, Inc. 1991 Employee Stock Purchase Plan, as amended
5.1 Opinion of Lindquist & Vennum P.L.L.P.
23.1 Consent of Lindquist & Vennum P.L.L.P. (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP, independent public accountants
24.1 Power of Attorney (set forth on the signature page hereof)
_____________________
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ITEM 9. UNDERTAKINGS.
(a) 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,
represents 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.
(b) 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 offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) 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 connected 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minnetonka, State of Minnesota, on September 18,
1997.
IN HOME HEALTH, INC.
By /s/ Wolfgang von Maack
-------------------------------------------
Wolfgang von Maack, Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
The undersigned officers and directors of In Home Health, Inc. hereby
constitute and appoint Wolfgang von Maack and Thomas R. Gross, or either of
them, with power to act one without the other, our true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for us and in our stead, in any and all capacities to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and all documents relating thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing necessary or
advisable to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
September 18, 1997 and in the capacities indicated.
SIGNATURE TITLE
/s/ Wolfgang von Maack Chief Executive Officer and Director
- ------------------------------
Wolfgang von Maack
/s/ Thomas R. Gross Chief Financial Officer
- ------------------------------ (Principal Financial and Accounting Officer)
Thomas R. Gross
/s/ James J. Lynn Director
- ------------------------------
James J. Lynn
/s/ Joseph R. Buckley Director
- ------------------------------
Joseph R. Buckley
/s/ Donald C. Tomasso Director
- ------------------------------
Donald C. Tomasso
/s/ James H. Rempe Director
- ------------------------------
James H. Rempe
5
<PAGE>
EXHIBIT 4.1
IN HOME HEALTH, INC.
1991 EMPLOYEE STOCK PURCHASE PLAN
4.1-A
<PAGE>
As Amended
IN HOME HEALTH, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. ESTABLISHMENT OF PLAN. In Home Health, Inc. (hereinafter referred to
as the "Company") proposes to grant to certain employees of the Company the
opportunity to purchase common stock of the Company. Such common stock shall be
purchased pursuant to the plan herein set forth which shall be known as the "IN
HOME HEALTH, INC. EMPLOYEE STOCK PURCHASE PLAN" (hereinafter referred to as the
"Plan"). The Company intends that the Plan shall qualify as an "Employee Stock
Purchase Plan" under Section 423 of the Internal Revenue Code of 1986, as
amended, and shall be construed in a manner consistent with the requirements of
said Section 423 and the regulations thereunder.
2. PURPOSE. The Plan is intended to encourage stock ownership by
employees of the Company, and as an incentive to them to remain in employment,
improve operations, increase profits, and contribute more significantly to the
Company's success.
3. ADMINISTRATION. The Plan shall be administered by a stock purchase
committee (hereinafter referred to as the "Committee") consisting of not less
than three directors or employees of the Company, as designated by the Board of
Directors of the Company (hereinafter referred to as the "Board of Directors").
The Board of Directors shall fill all vacancies in the Committee and may remove
any member of the Committee at any time, with or without cause. The Committee
shall select its own chairman and hold its meetings at such times and places as
it may determine. All determinations of the Committee shall be made by a
majority of its members. Any decision which is made in writing and signed by a
majority of the members of the Committee shall be effective as fully as though
made by a majority vote at a meeting duly called and held. The determinations
of the Committee shall be made in accordance with its judgment as to the best
interests of the Company, its employees and its shareholders and in accordance
with the purposes of the Plan; provided, however, that the provisions of the
Plan shall be construed in a manner consistent with the requirements of Section
423 of the Internal Revenue Code, as amended. Such determinations shall be
binding upon the Company and the participants in the Plan unless otherwise
determined by the Board of Directors. The Company shall pay all expenses of
administering the Plan. No member of the Board of Directors or the Committee
shall be liable for any action or determination made in good faith with respect
to the Plan or any option granted under it.
4. DURATION AND PHASES OF THE PLAN. (a) The Plan will commence on
November 1, 1991 and will terminate September 30, 1999, except that any phase
commenced prior to such termination shall, if necessary, be allowed to continue
beyond such termination until completion. Notwithstanding the foregoing, this
Plan shall be considered of no force or effect and any options granted shall be
considered null and void unless the holders of a majority of all of the issued
and outstanding shares of the common stock of the Company approve the Plan
within twelve (12) months after the date of its adoption by the Board of
Directors.
(b) The Plan shall be carried out in one or more phases, each phase being
for a period of one year, except that the first phase shall consist of the
eleven (11) month period ending September 30, 1992. Each phase shall commence
immediately after the termination of the preceding phase. The existence and
date of commencement of a phase (the "Commencement Date") shall be determined by
the Committee, provided that the commencement of the first phase shall be within
twelve (12) months before or after the date of approval of the Plan by the
shareholders of the Company. In the event all of the stock reserved for grant
<PAGE>
of options hereunder is issued pursuant to the terms hereof prior to the
commencement of one or more phases scheduled by the Committee or the number of
shares remaining is so small, in the opinion of the Committee, as to render
administration of any succeeding phase impracticable, such phase or phases shall
be cancelled. Phases shall be numbered successively as Phase 1, Phase 2 and
Phase 3.
(c) The Board of Directors may elect to accelerate the termination date of
any phase effective on the date specified by the Board of Directors in the event
of (i) any consolidation or merger of the Company in which the Company is not
the continuing or surviving corporation or pursuant to which shares would be
converted into cash, securities or other property, other than a merger of the
Company in which shareholders immediately prior to the merger have the same
proportionate ownership of stock in the surviving corporation immediately after
the merger; (ii) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all of the assets
of the Company; or (iii) any plan or liquidation or dissolution of the Company.
5. ELIGIBILITY. All Employees, as defined in Paragraph 19 hereof, who are
employed by the Company at least one day prior to the Commencement Date of a
phase shall be eligible to participate in such phase.
6. PARTICIPATION. Participation in the Plan is voluntary. An eligible
Employee may elect to participate in any phase of the Plan, and thereby become a
"Participant" in the Plan, by completing the Plan payroll deduction form
provided by the Company and delivering it to the Company or its designated
representative prior to the Commencement Date of that phase. Payroll deductions
for a Participant shall commence on the first payday after the Commencement Date
of the phase and shall terminate on the last payday immediately prior to or
coinciding with the termination date of that phase unless sooner terminated by
the Participant as provided in Paragraph 9 hereof.
7. PAYROLL DEDUCTIONS. (a) Upon enrollment, a Participant shall elect to
make contributions to the Plan by payroll deductions (in full dollar amounts and
in amounts calculated to be as uniform as practicable throughout the period of
the phase), in the aggregate amount not in excess of 10% of such Participant's
Base Pay for the term of the phase, as determined according to Paragraph 19
hereof.
The minimum authorized payroll deduction must aggregate to not less than
$10 per pay period.
(b) In the event that the Participant's compensation for any pay period is
terminated or reduced from the compensation rate for such a period as of the
Commencement Date of the phase for any reason so that the amount actually
withheld on behalf of the Participant as of the termination date of the phase is
less than the amount anticipated to be withheld over the phase year as
determined on the Commencement Date of the phase, then the extent to which the
Participant may exercise his option shall be based on the amount actually
withheld on his behalf. In the event of a change in the pay period of any
Participant, such as from bi-weekly to monthly, an appropriate adjustment shall
be made to the deduction in each new pay period so as to ensure the deduction of
the proper amount authorized by the Participant.
(c) All payroll deductions made for Participants shall be credited to
their accounts under the Plan. A Participant may not make any separate cash
payments into such account.
(d) Except for his right to discontinue participation in the Plan as
provided in Paragraph 9, no Participant shall be entitled to increase or
decrease the amount to be deducted in a given phase after the Commencement Date.
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8. OPTIONS.
(a) GRANT OF OPTION.
(i) A Participant who is employed by the Company as of the
Commencement Date of a phase shall be granted an option as
of such date to purchase a number of full shares of Company
common stock to be determined by dividing the total amount
to be credited to that Participant's account under Paragraph
7 hereof by the option price set forth in Paragraph
8(a)(ii)(A) hereof, subject to the limitations of Paragraph
10 hereof.
(ii) The option price for such shares of common stock shall be
the lower of:
A. Eighty-five percent (85%) of the fair market value of
such shares of common stock on the Commencement Date of
the phase; or
B. Eighty-five percent (85%) of the fair market value of
such shares of common stock on the termination date of
the phase.
(iii) The fair market value of shares of common stock of the
Company shall be determined by the Committee for each
valuation date in a manner acceptable under Section 423 of
the Internal Revenue Code of 1986.
(iv) Anything herein to the contrary notwithstanding, no Employee
shall be granted an option hereunder:
A. Which permits his rights to purchase stock under all
employee stock purchase plans of the Company, its
subsidiaries or its parent, if any, to accrue at a rate
which exceeds Twenty-Five Thousand Dollars ($25,000) of
the fair market value of such stock (determined at the
time such option is granted) for each calendar year in
which such option is outstanding at any time;
B. If immediately after the grant such Employee would own
and/or hold outstanding options to purchase stock
possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock
of the Company, its parent, if any, or of any
subsidiary of the Company. For purposes of determining
stock ownership under this Paragraph, the rules of
Section 424(d) of the Internal Revenue Code, as
amended, shall apply; or
C. Which can be exercised after the expiration of 27
months from the date the option is granted.
(b) EXERCISE OF OPTION.
(i) Unless a Participant gives written notice to the Company
pursuant to Paragraph 8(b)(ii) or Paragraph 9 prior to the
termination date of a phase, his option for the purchase of
shares will be exercised automatically for him as of such
termination date for the purchase of the number of full
shares of Company common stock which the
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accumulated payroll deductions in his account at that time
will purchase at the applicable option price, subject to the
limitations set forth in Paragraph 10 hereof.
(ii) A Participant may, by written notice to the Company at any
time during the thirty (30) day period immediately preceding
the termination date of a phase, elect, effective as of the
termination date of that phase, to exercise his option for a
specified number of full shares less than the maximum number
which may be purchased under his option.
(iii) As promptly as practicable after the termination date of any
phase, the Company will deliver to each Participant herein
the common stock purchased upon the exercise of his option,
together with a cash payment equal to the balance, if any,
of his account which was not used for the purchase of common
stock with interest accrued thereon.
9. WITHDRAWAL OR TERMINATION OF PARTICIPATION. (a) A Participant may, at
any time prior to the termination date of a phase, withdraw all payroll
deductions then credited to his account by giving written notice to the Company.
Promptly upon receipt of such notice of withdrawal, all payroll deductions
credited to the Participant's account will be paid to him with interest accrued
thereon and no further payroll deductions will be made during the phase. In
such event, the option granted the Participant under that phase of the Plan
shall lapse immediately. Partial withdrawals of payroll deductions hereunder
may not be made.
(b) In the event of the death of a Participant, the person or persons
specified in Paragraph 14 may give notice to the Company within sixty (60) days
of the death of the Participant electing to purchase the number of full shares
which the accumulated payroll deductions in the account of such deceased
Participant will purchase at the option price specified in Paragraph 8(a)(ii)
and have the balance in the account distributed in cash with interest accrued
thereon. If no such notice is received by the Company within said sixty (60)
days, the accumulated payroll deductions will be distributed in full in cash
with interest accrued thereon.
(c) Upon termination of Participant's employment for any reason other than
death of the Participant, the payroll deductions credited to his account, plus
interest, shall be returned to him.
10. STOCK RESERVED FOR OPTIONS. (a) One Million Five Hundred Thousand
(1,500,000) shares of the Company's common stock are reserved for issuance upon
the exercise of options to be granted under the Plan. Shares subject to the
unexercised portion of any lapsed or expired option may again be subject to
option under the Plan.
(b) If the total number of shares of the Company common stock for which
options are to be granted for a given phase as specified in Paragraph 8 exceeds
the number of shares then remaining available under the Plan (after deduction of
all shares for which options have been exercised or are then outstanding) and if
the Committee does not elect to cancel such phase pursuant to Paragraph 4, the
Committee shall make a pro rata allocation of the shares remaining available in
as uniform and equitable a manner as it shall consider practicable. In such
event, the options to be granted and the payroll deductions to be made pursuant
to the Plan which would otherwise be effected may, in the discretion of the
Committee, be reduced accordingly. The Committee shall give written notice of
such reduction to each Participant affected.
(c) The Participant (or a joint tenant named pursuant to Paragraph 10(d)
hereof) shall have no rights as a shareholder with respect to any shares subject
to the Participant's option until the date of the issuance of a stock
certificate evidencing such shares. No adjustment shall be made for dividends
(ordinary or
4
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extraordinary, whether in cash, securities or other property), distributions or
other rights for which the record date is prior to the date such stock
certificate is actually issued, except as otherwise provided in Paragraph 12
hereof.
(d) The shares of the Company common stock to be delivered to a
Participant pursuant to the exercise of an option under the Plan will be
registered in the name of the Participant or, if the Participant so directs by
written notice to the Committee prior to the termination date of that phase of
the Plan, in the names of the Participant and one other person the Participant
may designate as his joint tenant with rights of survivorship, to the extent
permitted by law.
11. ACCOUNTING AND USE OF FUNDS. Payroll deductions for each Participant
shall be credited to an account established for him under the Plan. A
Participant may not make any separate case payments into such account. Such
account shall be solely for bookkeeping purposes and no separate fund or trust
shall be established hereunder and the Company shall not be obligated to
segregate such funds. All funds from payroll deductions received or held by the
Company under the Plan may be used, without limitation, for any corporate
purpose by the Company.
12. ADJUSTMENT PROVISION. (a) Subject to any required action by the
shareholders of the Company, the number of shares covered by each outstanding
option, and the price per share thereof in each such option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of the Company common stock resulting from a subdivision or consolidation
of shares or the payment of a share dividend (but only on the shares) or any
other increase or decrease in the number of such shares effected without receipt
of consideration by the Company.
(b) In the event of a change in the shares of the Company as presently
constituted, which is limited to a change of all its authorized shares with par
value into the same number of shares with a different par value or without par
value, the shares resulting from any such change shall be deemed to be the
shares within the meaning of this Plan.
13. NON-TRANSFERABILITY OF OPTIONS. (a) Options granted under any phase
of the Plan shall not be transferable except under the laws of descent and
distribution and shall be exercisable only by the Participant during his
lifetime and after his death only by his beneficiary of the representative of
his estate as provided in Paragraph 9(b) hereof.
(b) Neither payroll deductions credited to a Participant's account, nor
any rights with regard to the exercise of an option or to receive common stock
under any phase of the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way by the Participant. Any such attempted assignment,
transfer, pledge or other disposition shall be null and void and without effect,
except that the Company may, at its option, treat such act as an election to
withdraw funds in accordance with Paragraph 9.
14. DESIGNATION OF BENEFICIARY. A Participant may file a written
designation of a beneficiary who is to receive any cash to the Participant's
credit plus interest thereon under any phase of the Plan in the event of such
Participant's death prior to exercise of his option pursuant to Paragraph 9(b)
hereof, or to exercise his option and become entitled to any stock and/or cash
upon such exercise in the event of the Participant's death prior to exercise of
the option pursuant to Paragraph 9(b) hereof. The beneficiary designation may
be changed by the Participant at any time by written notice to the Company.
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Upon the death of a Participant and upon receipt by the Company of proof
deemed adequate by it of the identity and existence at the Participant's death
of a beneficiary validly designated under the Plan, the Company shall in the
event of the Participant's death under the circumstances described in Paragraph
9(b) hereof, allow such beneficiary to exercise the Participant's option
pursuant to Paragraph 9(b) if such beneficiary is living on the termination date
of the phase and deliver to such beneficiary the appropriate stock and/or cash
after exercise of the option. In the event there is not validly designated
beneficiary under the Plan who is living at the time of the Participant's death
under the circumstances described in Paragraph 9(b) or in the event the option
lapses, the Company shall deliver the cash credited to the account of the
Participant with interest to the executor or administrator of the estate of the
Participant, or if no such executor or administrator has been appointed to the
knowledge of the Company, it may, in its discretion, deliver such cash to the
spouse or to any one or more dependents or relatives of the Participant, or if
no spouse, dependent or relative is known to the Company, then to such other
person as the Company may designate. The Company will not be responsible for or
be required to give effect to the disposition of any cash or stock or the
exercise of any option in accordance with any will or other testamentary
disposition made by such Participant or in accordance with the provision of any
law concerning intestacy, or otherwise. No designated beneficiary shall, prior
to the death of a Participant by whom he has been designated, acquire any
interest in any stock or in any option or in the cash credited to the
Participant under any phase of the Plan.
15. AMENDMENT AND TERMINATION. The Plan may be terminated at any time by
the Board of Directors provided that, except as permitted in Paragraph 4(c) with
respect to an acceleration of the termination date of any phase, no such
termination will take effect with respect to any options then outstanding.
Also, the Board may, from time to time, amend the Plan as it may deem proper and
in the best interests of the Company or as may be necessary to comply with
Section 423 of the Internal Revenue Code of 1986, as amended, or other
applicable laws or regulations; provided, however, that no such amendment shall,
without prior approval of the shareholders of the Company (1) increase the total
number of shares for which options may be granted under the Plan (except as
provided in Paragraph 12 herein), (2) permit aggregate payroll deductions in
excess of ten percent (10%) of a Participant's compensation as of the
Commencement Date of a phase, or (3) impair any outstanding option.
16. INTEREST. In any situation where the Plan provides for the payment of
interest on a Participant's payroll deductions, such interest shall be
determined by averaging the month-end balances in the Participant's account for
the period of his participation and computing interest thereon at the rate of
five percent (5%) per annum.
17. NOTICES. All notices or other communications in connection with the
Plan or any phase thereof shall be in the form specified by the Committee and
shall be deemed to have been duly given when received by the Participant or his
designated personal representative or beneficiary or by the Company or its
designated representative, as the case may be.
18. PARTICIPATION OF SUBSIDIARIES. The Employees of any Subsidiary of the
Company shall be entitled to participate in the Plan on the same basis as
Employees of the Company, unless the Board of Directors determines otherwise.
Effective as of the date of coverage of any Subsidiary, any references herein to
the "Company" shall be interpreted as referring to such Subsidiary as well as to
In Home Health, Inc.
In the event that any Subsidiary which is covered under the Plan ceases to
be a Subsidiary of In Home Health, Inc., the employees of such Subsidiary shall
be considered to have terminated their
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employment for purposes of Paragraph 9 hereof as of the date such Subsidiary
ceases to be such a Subsidiary.
19. DEFINITIONS. (a) "Subsidiary" shall include any corporation defined
as a subsidiary of the Company in Section 424(f) of the Internal Revenue Code of
1986, as amended.
(b) "Employee" shall mean any employee, including an officer, of the
Company who as of the day immediately preceding the Commencement Date of a phase
is customarily employed by the Company for more than twenty (20) hours per week
and more than five (5) months in a calendar year.
(c) "Base Pay" is the regular pay for employment for each employee as
annualized for a twelve (12) month period, exclusive of overtime, commissions,
bonuses, disability payments, shift differentials, incentives and other similar
payments, determined as of the Commencement Date of each phase.
As Amended, Adopted by Board of Directors: August 13, 1996
As Amended, Approved by Stockholders: March 6, 1997
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EXHIBIT 5.1
September 18, 1997
In Home Health, Inc.
601 Lakeshore Parkway, Suite 500
Minnetonka, Minnesota 55305
Re: OPINION OF COUNSEL AS TO LEGALITY OF 800,000 SHARES OF COMMON STOCK TO
BE REGISTERED UNDER THE SECURITIES ACT OF 1933
Ladies and Gentlemen:
This opinion is furnished in connection with the registration under the
Securities Act of 1933 on Form S-8 of 800,000 shares of Common Stock, $0.01 par
value, of In Home Health, Inc. (the "Company") offered pursuant to the In Home
Health, Inc. 1991 Employee Stock Purchase Plan (the "Plan").
We advise you that it is our opinion, based on our familiarity with the
affairs of the Company and upon our examination of pertinent documents, that the
800,000 shares of Common Stock to be issued by the Company under the Plan, will,
when paid for and issued, be validly issued and lawfully outstanding, fully paid
and nonassessable shares of Common Stock of the Company.
The undersigned hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an Exhibit to the Registration Statement
with respect to said shares of Common Stock under the Securities Act of 1933.
Very truly yours,
LINDQUIST & VENNUM P.L.L.P.
/s/ Lindquist & Vennum P.L.L.P.
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of In Home Health, Inc. 1991 Employee Stock Purchase Plan on Form S-8 of our
report dated November 12, 1996 appearing in the Annual Report on Form 10-K
for the year ended September 30, 1996.
DELOITTE & TOUCHE L.L.P.
/s/ Deloitte & Touche L.L.P.
Minneapolis, Minnesota
September 18, 1997
