Form 8-A12G/Amendment No. 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
Amendment No. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HESKA CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware
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77-0192527 |
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(State of Incorporation or Organization)
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(I.R.S. Employer Identification No.) |
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3760 Rocky Mountain Avenue
Loveland, Colorado
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80538 |
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(Address of Principal Executive Offices)
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(Zip Code) |
Securities to be registered pursuant to Section 12(b) of the Act:
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Title of Each Class |
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Name of Each Exchange on Which |
To be so Registered |
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Each Class is to be Registered |
Class A Common Stock
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Nasdaq Global Market |
If this form relates to the registration of a class of
securities pursuant to Section 12(b) of the Exchange
Act and is effective pursuant to General Instruction
A.(c), please check the following box. þ
If this form relates to the registration of a class of
securities pursuant to Section 12(g) of the Exchange
Act and is effective pursuant to General Instruction
A.(d), please check the following box. o
Securities Act registration statement file number to which this form relates: Not Applicable
Securities to be registered pursuant to Section 12(g) of the Act: None
The undersigned hereby amends, as set forth below, the Registration Statement on Form 8-A
filed by the registrant with the Securities and Exchange Commission on April 24, 1997.
Item 1. Description of Registrants Securities to be Registered.
GENERAL DESCRIPTION
On May 4, 2010, the stockholders of Heska Corporation, a Delaware corporation (the Company),
approved an amendment (the NOL Protective Amendment) to the Companys Restated Certificate of
Incorporation (as amended, the Charter) to reclassify its existing common stock, par value $0.001
per share (the Original Common Stock), into shares of new common stock, par value $0.001 per
share (the Common Stock), and impose restrictions on transfer of the Common Stock in certain
circumstances. These restrictions on transfer prohibit certain future transfers of Companys
capital stock that could adversely affect the Companys ability to utilize its net operating loss
carryforwards and certain income tax credits to reduce its federal income taxes (the Tax
Benefits). Pursuant to the NOL Protective Amendment, each share of the Companys Original Common
Stock was automatically reclassified into one share of Common Stock (the Reclassification).
The following summary of certain provisions of the Companys Common Stock does not purport to
be complete and is subject to, and qualified in its entirety by reference to, the provisions of the
Charter and by the provisions of applicable law.
The authorized capital stock of the Company consists of 75,000,000 shares of Original Common
Stock, 75,000,000 shares of Common Stock, and 25,000,000 shares of preferred stock, $0.001 par
value per share. The shares of the Common Stock are currently traded on the NASDAQ Capital Market.
Except for the restrictions on transfer set forth in the NOL Protective Amendment and
summarized below, the shares of Common Stock have the same rights and preferences as shares of
Original Common Stock.
COMMON STOCK
Voting Rights
Each holder of the Common Stock is entitled to one vote for each share of Common Stock held of
record on the applicable record date on all matters submitted to a vote of stockholders. There are
no cumulative voting rights, which means that the holders of a majority of the shares voted can
elect all of the directors then standing for election.
Dividend Rights; Rights upon Liquidation
The holders of Common Stock are entitled to receive dividends out of assets legally available
for dividends at times and in amounts as the board of directors may determine. These dividend
rights are subject to any preferential dividend rights granted to the holders of any outstanding
preferred stock.
In the event of our liquidation, dissolution or winding up, each share of Common Stock is
entitled to share pro rata in any distribution of our assets after payment or providing for the
payment of liabilities and the liquidation preference of any outstanding preferred stock.
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Preemptive and Other Rights
Other than as set forth under Conversion below, holders of Common Stock have no preemptive
or other rights to purchase, subscribe for or otherwise acquire any unissued or treasury shares or
other securities. There are no redemption or sinking fund provisions applicable to the Common
Stock.
Conversion
Each share of Common Stock will be automatically converted into the equivalent number of
shares of Original Common Stock on the earlier of January 1, 2026, the date the Companys board of
directors determines that the transfer restrictions described below are no longer necessary or
advisable to preserve the Tax Benefits due to changes in tax laws, or the date the Companys board
of directors determines in good faith that it is in the best interests of the Company and its
stockholders to terminate the transfer restrictions.
PREFERRED STOCK
The Companys board of directors has the authority, without stockholder approval, to create
and issue one or more series of preferred stock and to fix the number of shares, designations,
preferences, powers and relative, participating, optional or other special rights of the shares of
that series, and the qualifications or restrictions on those preferences or rights. The specific
matters that may be determined by the board with respect to a series of preferred stock include:
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the designation of the series; |
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the number of shares of the series; |
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the rate of dividends, if any; |
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whether dividends, if any, are cumulative or non-cumulative; |
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the terms of redemption, if any; |
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the amount payable in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Company; |
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rights and terms of conversion or exchange, if any; |
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restrictions on the issuance of shares of the same series or any other series, if any;
and |
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voting rights, if any. |
The issuance of preferred stock, while providing desirable flexibility in connection with
possible acquisitions and other corporate purposes, could decrease the amount of earnings and
assets available for distribution to holders of Common Stock or affect adversely the rights and
powers, including voting rights, of the holders of Common Stock. Also, the issuance of preferred stock may have the effect of delaying, deferring or preventing a change in control of the
Company and may adversely affect the market price of the Common Stock.
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CERTAIN TRANSFER RESTRICTIONS
As a result of the NOL Protective Amendment, the shares of Common Stock are also subject to
transfer restrictions such that holders of Common Stock are restricted from attempting to transfer
(which includes any direct or indirect acquisition, sale, transfer, assignment, conveyance, pledge
or other disposition) any of the shares of Common Stock (or options, warrants or other rights to
acquire the Common Stock, or securities convertible or exchangeable into Common Stock), to the
extent that such transfer would (i) create or result in an individual or entity becoming a
5-percent shareholder of the Common Stock for purposes of Section 382 of the Internal Revenue Code
of 1986, as amended, and the related Treasury Regulations (which are referred to as a Five Percent
Shareholder) or (ii) increase the stock ownership percentage of any existing Five Percent
Shareholder.
Transfers that violate the provisions of the NOL Protective Amendment shall be null and void
ab initio and shall not be effective to transfer any record, legal, beneficial or any other
ownership of the number of shares which result in the violation of the NOL Protective Amendment
(which shares are referred to as Excess Securities). The purported transferee shall not be
entitled to any rights as a Company stockholder with respect to the Excess Securities. Instead,
the purported transferee would be required, upon demand by the Company, to transfer the Excess
Securities to an agent designated by the Company for the limited purpose of consummating an orderly
arms-length sale of such shares. The net proceeds of the sale will be distributed first to
reimburse the agent for any costs associated with the sale, second to the purported transferee to
the extent of the price it paid, and finally any additional amount will go to the purported
transferor, or, if the purported transferor cannot be readily identified to the Company, to cover
the costs incurred by the Company as a result of such prohibited transfer, with the remainder, if
any, to be donated to a charity designated by the Board.
With respect to any transfer that does not involve a transfer of the Companys securities
within the meaning of Delaware law but which would cause any Five Percent Shareholder to violate
the transfer restrictions, the following procedure would apply in lieu of those described above.
In such case, no such Five Percent Shareholder would be required to dispose of any interest that is
not a security of the Company, but such Five Percent Shareholder and/or any person whose ownership
of securities of the Company is attributed to such Five Percent Shareholder, would be deemed to
have disposed of (and would be required to dispose of) sufficient securities (which securities
shall be disposed of in the inverse order in which they were acquired), simultaneously with the
transfer, to cause such Five Percent Shareholder not to be in violation of the transfer
restrictions, and such securities would be treated as Excess Securities to be disposed of through
the agent under the provisions summarized above, with the maximum amount payable to such Five
Percent Shareholder or such other person that was the direct holder of such Excess Securities from
the proceeds of sale by the agent being the fair market value of such Excess Securities at the time
of the prohibited transfer.
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The NOL Protective Amendment also provides the Company with various remedies to prevent or
respond to a purported transfer that violates its provisions, including that any person who knowingly violates it, together with any persons in the same control group with such person,
are jointly and severally liable to the Company for such amounts as will put it in the same
financial position as it would have been in had such violation not occurred.
This summary description of the NOL Protective Amendment does not purport to be complete and
is qualified in its entirety by reference to the NOL Protective Amendment, which is filed as
Exhibit 3.2 to this Form 8-A/A and is hereby incorporated by reference.
DELAWARE ANTI-TAKEOVER LAW AND CERTAIN CHARTER PROVISIONS
The NOL Protective Amendment may have an anti-takeover effect because, among other things,
the Common Stock issued in exchange for the Original Common Stock restricts the ability of a
person, entity or group to accumulate more than five percent of the Companys Common Stock and the
ability of persons, entities or groups now owning more than five percent of the outstanding shares
of Common Stock from acquiring additional shares of the Companys Common Stock without the approval
of the Companys board of directors.
The Company is subject to Section 203 of the Delaware General Corporation Law, an
anti-takeover law. In general, the statute prohibits a publicly held Delaware corporation from
engaging in a business combination with an interested stockholder for a period of three years
after the date of the transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner. A business combination includes a
merger, asset sale or other transaction resulting in financial benefit to the stockholder. An
interested stockholder is a person who, together with affiliates and associate, owns (or within
three years prior, did own) 15% or more of the corporations voting stock.
The Charter provides for a classified board of directors. The provisions of the Charter
establishing a classified board may only be amended or repealed by the holders of at least
two-thirds of the voting power of all the then-outstanding shares of stock entitled to vote
generally for the election of directors, voting together as a single class. The Charter also
eliminates the right of stockholders to call special meetings of stockholders.
The provisions described above, together with the ability of the Companys board to issue
preferred stock as described above under Preferred Stock could have the following effects:
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delaying, deferring or preventing a change in control; |
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delaying, deferring or preventing the removal of existing management; |
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deterring potential acquirers from making an offer to our stockholders; and |
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limiting any opportunity of our stockholders to realize premiums over prevailing market
prices of our common stock in connection with offers by potential acquirers. |
The above-described effects could occur even if a majority of our stockholders might benefit
from such a change in control or offer.
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Item 2. Exhibits.
The following exhibits are filed as a part of this Registration Statement:
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Exhibit |
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No. |
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Description |
3.1
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Restated Certificate of Incorporation of the Company. (1) |
3.2
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Certificate of Amendment to Restated Certificate of Incorporation of the Company.(2) |
3.3
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Bylaws of the Company. (2) |
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(1) |
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Previously filed with the Registrants Form 10-Q for the quarter ended June 30, 2000. |
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(2) |
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Previously filed with the Registrants Form 10-Q for the quarter ended March 31, 2010. |
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the
registrant has duly caused this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
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HESKA CORPORATION
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Date: May 6, 2010 |
By: |
/s/ Jason A. Napolitano
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Name: |
Jason A. Napolitano |
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Title: |
Executive Vice President, CFO and Secretary |
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