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As filed with the Securities and Exchange Commission on August 21, 1997
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HESKA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 77-0192527
(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
1825 Sharp Point Drive
Fort Collins, Colorado 80525
(Address, including zip code, of principal executive offices)
1988 STOCK PLAN
1994 KEY EXECUTIVE STOCK PLAN
1997 STOCK INCENTIVE PLAN
(Full Titles of the Plans)
Copy to:
FRED M. SCHWARZER KAREN A. DEMPSEY
Heska Corporation Pillsbury Madison & Sutro LLP
1825 Sharp Point Drive P.O. Box 7880
Fort Collins, Colorado 80525 San Francisco, CA 94120-7880
(970) 493-7272 (415) 983-1000
- ---------------------------- -----------------------------
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Offering Price Aggregate Offering Amount of
To Be Registered Be Registered per Share Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value 1,785,869 $0.79(1) $1,410,837(3) $428(5)
per share, to be issued upon
exercise of options granted
under the 1988 Stock Plan
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Common Stock, $0.001 par value 125,000 $1.03(1) $128,750(3) $39(5)
per share, to be issued upon
exercise of options granted
under the 1994 Key Executive
Stock Plan
Common Stock, $0.001 par value 1,612,461 $7.44(2) $11,996,710(4) $3,636(5)
per share, to be issued upon
exercise of options granted
under the 1997 Stock Incentive
Plan
================================================================================
(1) The Proposed Maximum Offering Price Per Share was estimated pursuant to
Rule 457(h) under the Securities Act of 1933, as Amended (the
"Securities Act") under which rule the per share price of outstanding
options to purchase stock under an employee stock option plan may be
estimated by reference to the exercise price of such options. The
weighted average exercise price of the 1,785,869 shares subject to
outstanding options under the 1988 Stock Plan is $0.79. The weighted
average exercise price of the 125,000 shares subject to outstanding
options under the 1994 Key Executive Stock Plan is $1.03. No shares are
available for future grant under either of the 1988 Stock Plan or the
1994 Key Executive Stock Plan.
(2) The Proposed Maximum Offering Price Per Share was estimated in part
pursuant to Rule 457(h) under the Securities Act and, in party, pursuant
to Rule 457(c) under the Securities Act. With respect to the 540,780
shares which are subject to outstanding options to purchase Common Stock
under the 1997 Stock Incentive Plan, the Proposed Maximum Offering Price
Per Share was estimated pursuant to Rule 457(h). The weighted average
exercise price of the 540,780 shares subject to outstanding options
under the 1997 Stock Incentive Plan is $4.96. With respect to the
1,071,681 shares of Common Stock available for future grant under the
1997 Stock Incentive Plan, the estimated Proposed Maximum Offering Price
Per Share was estimated pursuant to Rule 457(c) whereby the per share
price was determined by reference to the average of the high and low
price of the Registrant's common stock as reported on the Nasdaq
National Market on August 19, 1997, which average was $8.688. The
number referenced above in the table entitled "Proposed Maximum Offering
Price Per Share" represents a weighted average of the foregoing
estimates calculated in accordance with Rules 457(h) and 457(c).
(3) The Proposed Maximum Aggregate Offering Price was estimated pursuant to
Rule 457(h) under the Securities Act based on the aggregate exercise
price of options as described in Note 1.
(4) The Proposed Maximum Aggregate Offering Price was estimated pursuant to
Rule 457(h) under the Securities Act based on the aggregate exercise
price of options as described in Note 2.
(5) Total filing fee for the filing of this Registration Statement is
$4,103.00
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The Registration Statement shall become effective upon filing in accordance
with Rule 462 under the Securities Act of 1933.
- --------------------------------------------------------------------------------
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended,
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by Registrant with the Securities
and Exchange Commission are incorporated by reference in this registration
statement:
(1) Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997 filed pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended.
(2) Registrant's prospectus dated June 30, 1997 filed pursuant
to Rule 424(b) under the Securities Act of 1933 (in connection with
Registrant's Registration Statement on Form S-1, File No. 333-25767 (the "Form
S-1 Registration Statement")), which contains the balance sheets of the
Registrant as of December 31, 1995 and 1996 and March 31, 1997 (unaudited) and
the related statements of operations, stockholders' equity and cash flows for
each of the three years in the period ended December 31, 1994, 1995 and 1996
and the three months ended March 31, 1997 (unaudited), together with the report
thereon of Arthur Andersen LLP, independent public accountants, and the
statements of income and cash flows of Diamond Animal Health, Inc., for the
years ended March 31, 1995 and 1996, together with the reports thereon of Ernst
& Young LLP and McGladrey & Pullen, LLP, independent public accountants.
(3) The description of Registrant's Common Stock contained in
Registrant's registration statement on Form 8-A, filed April 24, 1997.
In addition, all documents subsequently filed by Registrant
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
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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.
The financial statements of Heska Corporation incorporated by
reference in this registration statement have been audited by Arthur Andersen
LLP, independent public accountants, and the financial statements of Diamond
Animal Health, Inc. incorporated by reference in this registration statement
have been audited by McGladrey & Pullen, LLP and Ernst & Young LLP, independent
public accountants, to the extent indicated in each of their reports thereon
also incorporated by reference. Such financial statements have been
incorporated herein by reference in reliance upon each of such reports given
upon the authority of said firms as experts in auditing and accounting.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides for
the indemnification of officers, directors, and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended (the "Act"). Article XI of the Registrant's
Restated Certificate of Incorporation (Exhibit 3.1(c) to the Form S-1
Registration Statement) provides for indemnification of the Registrant's
directors, officers, employees and other agents to the extent and under the
circumstances permitted by the Delaware General Corporation Law.
The Underwriting Agreement (Exhibit 1.1 to the Form S-1
Registration Statement) provides for indemnification by the Underwriters of the
Registrant, its directors and officers, and by the Registrant of the
Underwriters, for certain liabilities, including liabilities arising under the
Act, and affords certain rights of contribution with respect thereto.
The Company has entered into separate indemnification agreements
(a form of which has been filed as Exhibit 10.18 to the Form S-1 Registration
Statement) with each of its directors and certain of its executive officers
that will require the Company, among other things, to indemnify them against
certain liabilities that may arise by reason of their status or service as a
director or executive officer, as the case may be, to the fullest extent not
prohibited by law.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits.
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 post-registration
statement (or the most recent 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.
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(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 further 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.
(c) 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.
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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 Fort Collins, State of Colorado, on August 21,
1997.
HESKA CORPORATION
By /s/ FRED M. SCHWARZER
---------------------------------------
Fred M. Schwarzer
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Fred M. Schwarzer, Robert B. Grieve,
William G. Skolout and Deborah E. Robbins, and each of them his or her true and
lawful attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments, including post-effective
amendments, to this registration statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his or her substitute or substitutes, may do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
Name Title Date
---- ----- ----
/s/ FRED M. SCHWARZER President and Chief Executive Officer August 21, 1997
- ---------------------------------- (Principal Executive Officer) and
Fred M. Schwarzer Director
/s/ WILLIAM G. SKOLOUT Chief Financial Officer
- ---------------------------------- (Principal Financial Officer and Accounting August 21, 1997
William G. Skolout Officer)
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Name Title Date
---- ----- ----
/s/ A. BARR DOLAN Chairman of the Board August 21, 1997
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A. Barr Dolan
/s/ ROBERT B. GRIEVE, PH.D. Chief Scientific Officer and Vice August 21, 1997
- ---------------------------------- Chairman
Robert B. Grieve, Ph.D.
/s/ LYLE A. HOHNKE, PH.D. Director August 21, 1997
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Lyle A. Hohnke, Ph.D.
/s/ DENIS H. POMROY Director August 21, 1997
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Denis H. Pomroy
/s/ LYNNOR B. STEVENSON, PH.D. Director August 21, 1997
- ----------------------------------
Lynnor B. Stevenson, Ph.D.
/s/ GUY TEBBIT, PH.D. Director August 21, 1997
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Guy Tebbit, Ph.D.
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
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4.1 Specimen Common Stock Certificate(1)
5.1 Opinion regarding legality of securities to be offered.
10.1 1988 Stock Plan of Registrant.
10.2 Form of Option Agreement for 1998 Stock Plan.
10.3 1994 Key Executive Stock Plan of Registrant.
10.4 Form of Option Agreement for 1994 Key Executive Stock Plan.
10.5 1997 Stock Incentive Plan of Registrant.(2)
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of McGladrey & Pullen, LLP.
23.3 Consent of Ernst & Young LLP.
23.4 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 5).
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(1) Incorporated by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form S-1, File No. 333-25767.
(2) Incorporated by reference to Exhibit 10.19 to
Registrant's Registration Statement on Form S-1, File No. 333-25767.