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As filed with the Securities and Exchange Commission on July 9, 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
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1825 Sharp Point Drive
Fort Collins, Colorado 80525
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(Address of Principal (Zip Code)
Executive Offices)
HESKA CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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Title of Amount Proposed Maximum Proposed Amount of
Securities To To Be Offering Price Maximum Aggregate Registration
Be Registered Registered per Share(1) Offering Price(1) Fee
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<S> <C> <C> <C> <C>
Common Stock, 250,000 shares $8.531 $2,132,750 $647
par value $.001
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</TABLE>
(1) Estimated in accordance with Rule 457(c) for the purpose of computing
the amount of the registration fee based on the average of the high
and low prices of the Company's Common Stock as reported on the
Nasdaq National Market on July 3, 1997.
-----------------
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 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.
(2) 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 reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
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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.
Item 7. Exemption from Registration Claimed.
______ ___________________________________
Not applicable.
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<PAGE>
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.
(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
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<PAGE>
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 July 7,
1997.
HESKA CORPORATION
By /s/FRED M. SCHWARZER
_____________________________________
Fred M. Schwarzer
President and Chief Executive Officer
POWER OF ATTORNEY
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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 July 7, 1997
________________________ Executive Officer
Fred M. Schwarzer (Pincipal Executive Officer)
and Director
/s/ WILLIAM G. SKOLOUT Chief Financial Officer (Principal July 7, 1997
_________________________ Financial Officer and Accounting
William G. Skolout Officer)
<PAGE>
/s/ A. BARR DOLAN Chairman of the Board July 7, 1997
_____________________________
A. Barr Dolan
/s/ ROBERT B. GRIEVE, PH.D. Chief Scientific Officer July 7, 1997
_____________________________ and Vice Chairman
Robert B. Grieve, Ph.D.
/s/ LYLE A. HOHNKE, PH.D. Director July 7, 1997
_____________________________
Lyle A. Hohnke, Ph.D.
/s/ DENIS H. POMROY Director July 7, 1997
_____________________________
Denis H. Pomroy
/s/ LYNNOR B. STEVENSON, PH.D. Director July 7, 1997
______________________________
Lynnor B. Stevenson, Ph.D.
/s/ GUY TEBBIT, Ph.D. Director July 7, 1997
______________________________
Guy Tebbit, Ph.D.
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
_______ _______
4.1* Specimen Common Stock Certificate
5.1 Opinion regarding legality of
securities to be offered.
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 6).
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* Incorporated by reference to Exhibit 4.1 to Registrant's Registration
Statement on Form S-1, File No. 333-25767.
<PAGE>
Exhibit 5.1
PILLSBURY MADISON & SUTRO LLP
P.O. BOX 7880
SAN FRANCISCO, CA 94120
Tel: (415) 983-1000
Fax: (415) 983-1200
July 7, 1997
Heska Corporation
1825 Sharp Point Drive
Fort Collins, Colorado 80525
Re: Registration Statement on Form S-8
Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by
Heska Corporation, a Delaware corporation (the "Company"), with the Securities
and Exchange Commission under the Securities Act of 1933, relating to 250,000
shares of the Company's Common Stock issuable pursuant to the Company's Employee
Stock Purchase Plan (the "Plan"), it is our opinion that such shares of the
Common Stock of the Company, when issued and sold in accordance with the Plan
will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
PILLSBURY MADISON & SUTRO LLP
[E01976]
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
_________________________________________
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 for the Employee Stock
Purchase Plan of Heska Corporation of our report dated February 28, 1997,
included in Heska Corporation's Registration Statement (No. 333-25767) filed
with the Securities and Exchange Commission.
ARTHUR ANDERSEN LLP
Denver, Colorado
July 7, 1997
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
_________________________________________
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Employee Stock Purchase Plan of Heska Corporation of
our report dated May 14, 1996, relating to the financial statements of Diamond
Animal Health, Inc. included in its Registration Statement (Form S-1, No.
333-25767) filed with the Securities and Exchange Commission.
McGLADREY & PULLEN, LLP
Des Moines, Iowa
July 7, 1997
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Exhibit 23.3
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Employee Stock Purchase Plan of Heska Corporation of
our report dated May 30, 1995, with respect to the statements of income and cash
flows of Diamond Animal Health, Inc. for the year ended March 31, 1995 included
in the Registration Statement (Form S-1 No. 333-25767) of Heska Corporation
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Des Moines, Iowa
July 7, 1997
