EXHIBIT 4.5
COMMON STOCK WARRANT PURCHASE AGREEMENT
This COMMON STOCK WARRANT PURCHASE AGREEMENT (the "Agreement") is made
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and entered into as of this 29th day of July, 1998 by and between HESKA
CORPORATION, a Delaware corporation ("Company"), and ▇▇▇▇▇▇▇ PURINA COMPANY, a
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Missouri corporation ("Purchaser").
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RECITALS
WHEREAS, Company and Purchaser have entered into a Collaboration and
License Agreement of even date herewith (the "Collaboration Agreement");
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WHEREAS, in addition to the Collaboration Agreement, Purchaser desires to
acquire from Company, and Company has agreed to issue to Purchaser, warrants to
purchase shares of Company's common stock, par value $.001 per share, on the
terms and subject to the conditions set forth herein; and
WHEREAS, in addition to the transactions contemplated hereby, Purchaser and
Company are entering into a Common Stock Purchase Agreement (the "Stock Purchase
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Agreement") of even date, pursuant to which Purchaser will acquire from Company,
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and Company will issue and sell to Purchaser, shares of Company Common Stock
(the "Purchased Shares"), on the terms and subject to the conditions set forth
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in the Stock Purchase Agreement;
1. DEFINITIONS. Unless the context otherwise requires, the following
terms shall have the meanings specified for all purposes of this Agreement:
"Agreement" shall mean this Agreement.
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"Amendment" shall have the meaning ascribed to it in section 3.2
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hereof.
"Applicable Law" shall mean all applicable provisions of all (i)
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constitutions, treaties, statutes, laws (including the common law), rules,
regulations, ordinances, codes or orders of any Governmental Authority, (ii)
Governmental Approvals, (iii) orders, decisions, injunctions, judgments, awards
and decrees of or agreements with any Governmental Authority and (iv) the rules
and regulations of any stock exchange or self regulatory organization governing
the market or markets where Company's or Purchaser's securities are actively
traded.
"Business Day" shall mean a day other than a Saturday, Sunday or
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other day on which commercial banks in the State of New York are authorized or
required to close.
"Certificate of Incorporation" shall mean Company's restated certificate of
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incorporation, as filed with the Secretary of State of the State of Delaware, in
effect on the date of this Agreement and as the same may be amended from time to
time after the date hereof.
"Closing" shall have the meaning assigned to it in Section 4.
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"Closing Date" shall have the meaning assigned to it in Section 4.
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"Company" shall have the meaning ascribed to it in the preamble of this
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Agreement.
"Company Common Stock" shall mean the common stock of Company, $.001 par
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value per share, as described in the Certificate of Incorporation.
"Collaboration Agreement" shall have the meaning ascribed to it in the
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recitals to this Agreement.
"Commission" shall mean the Securities and Exchange Commission.
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"Consent" shall mean any consent, approval, authorization, waiver, permit,
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grant, franchise, concession, agreement, license, exemption or order of,
registration, certificate, declaration or filing with, or report or notice to,
any Person, including but not limited to any Governmental Authority.
"Effective Date" with respect to the Collaboration Agreement, shall have
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the meaning ascribed to such term in the Collaboration Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission promulgated thereunder as in
effect from time to time.
"Governmental Approval" shall mean any Consent of, with or from any
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Governmental Authority.
"Governmental Authority" shall mean any nation or government, any state or
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other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including without limitation any government authority, agency,
department, board, commission or instrumentality of the United States, any State
of the United States or any political subdivision thereof, and any tribunal or
arbitrator(s) of competent jurisdiction.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
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1976, as amended, and all rules and regulations promulgated thereunder.
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"Holder" of any security shall mean the permitted record or beneficial
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owner of such security.
"Investors' Rights Agreement" shall have the meaning ascribed to it in
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section 3.2 hereof.
"Material Adverse Effect" shall mean, with regard to any party, any event,
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occurrence, fact, condition, change or effect that individually or in the
aggregate with similar events, occurrences, facts, conditions, changes or
effects will or can reasonably be expected to have a material adverse effect on
the business, assets, liabilities, operations or financial or other condition of
such party and its subsidiaries, if any, taken as a whole, or cause a material
limitation on the ability of such party to perform its obligations under this
Agreement.
"Person" shall mean any natural person, firm, partnership, association,
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corporation, company, limited liability company, limited partnership, trust,
business trust, Governmental Authority, unincorporated entity or other entity.
"Purchaser" shall have the meaning ascribed to it in the preamble of
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this Agreement.
"SEC Documents" shall have the meaning ascribed in Section 7.6.
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"Securities Act" shall mean the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission promulgated thereunder as in effect from
time to time.
"Warrant" shall have the meaning assigned to it in Section 2.
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"Warrant Purchase Price" shall mean: (i) for the period of time commencing
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on the Date of Issuance of the Warrant, as defined therein, and ending on and
including the last day of the first anniversary of such date (the "Initial
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Exercise Period"), an amount equal to $12.87 per Warrant Share; (ii) for the
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period of time commencing on the first day following the expiration of the
Initial Exercise Period and ending on and including the last day of the second
anniversary of the Date of Issuance of the Warrant (the "Second Exercise
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Period"), an amount equal to $14.16 per Warrant Share; and (iii) for the period
of time commencing on the first day following the expiration of the Second
Exercise Period and ending on and including the last day of the Exercise Period
(as defined in the Warrant), an amount equal to $15.57 per Warrant Share;
subject in each case to adjustment as provided in the Warrant.
"Warrant Shares" shall mean the shares of Company Common Stock into which
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the Warrant is at any time exercisable, as set forth in Section 2 hereof.
2. AUTHORIZATION OF WARRANT AND WARRANT SHARES. Company has authorized
the issuance of (i) a stock purchase warrant in the form of Annex A hereto (the
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"Warrant"), entitling the holder of the Warrant to purchase up to One Million
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One Hundred Sixty Five Thousand Five
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Hundred Ninety Two (1,165,592) shares of Company Common Stock at the Warrant
Purchase Price and on the terms and conditions set forth in the Warrant (the
"Warrant Shares") and (ii) the Warrant Shares, upon exercise of the Warrant.
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3. SALE AND PURCHASE OF WARRANT; REGISTRATION OF WARRANT SHARES.
3.1 SALE AND PURCHASE OF WARRANT. Upon the terms and subject to the
conditions herein contained, at the Closing on the Closing Date, (i) Company
agrees to issue to Purchaser the Warrant and (ii) Purchaser agrees to pay
Company, as the purchase price for the Warrant, the aggregate sum of Two Hundred
and Fifty Thousand Dollars ($250,000), payable by wire transfer to the account
of Company designated by Company.
3.2 "PIGGYBACK" REGISTRATION OF WARRANT SHARES. Within thirty (30)
days after the Closing, Company will use its best efforts to cause its existing
First Amended Investors' Rights Agreement, as amended (the "Investors' Rights
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Agreement") (a true and correct copy of which has been provided to Purchaser),
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to be further amended to provide "piggyback" registration rights to Purchaser
with respect to the Warrant Shares, substantially in accordance with the terms
of that certain Third Waiver and Amendment To First Amended Investors' Rights
Agreement, a copy of which is annexed hereto as Annex B (the "Amendment"). In
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the event Company is unable to obtain the requisite signatures of the existing
parties to the Investors' Rights Agreement to approve the Amendment within such
thirty (30) day period, Company and Purchaser shall enter into a mutually
acceptable registration rights agreement providing for "piggyback" registration
rights on terms consistent with the rights that would have been provided for
under the currently operative provisions of the Investors' Rights Agreement, as
amended by the Amendment, subject to the limitations, including without
limitation the limitations on future registration rights, set forth in the
Investors' Rights Agreement.
4. CLOSING. Subject to the satisfaction of the conditions specified in
Section 5 hereof, the closing of the issuance to and acquisition by Purchaser of
the Warrant (the "Closing") shall occur upon execution and delivery of this
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Agreement, or at such later time as Company and Purchaser mutually agree upon,
but in no event sooner than the Effective Date of the Collaboration Agreement
and the closing of the transactions contemplated by the Stock Purchase Agreement
(the "Closing Date"). At the Closing, Company shall deliver to Purchaser the
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duly executed Warrant in the form of Annex A, which Warrant shall be registered
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in Purchaser's name as stated on Purchaser's signature page hereto, against
delivery to Company of the purchase price therefor in accordance with Section 3
above.
5. CONDITIONS TO CLOSING.
5. CONDITIONS TO PURCHASER'S OBLIGATIONS AT CLOSING. The obligation
of Purchaser to purchase the Warrant on the Closing Date is subject to the
fulfillment prior to or on the Closing Date of the following conditions, any of
which conditions may be waived by Purchaser:
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(A) REPRESENTATIONS AND WARRANTIES; COVENANTS. The
representations and warranties of Company contained in this Agreement (i) shall
be true and correct at and as of the date hereof and (ii) shall be repeated and
shall be true and correct on and as of the Closing Date (if later than the date
hereof) with the same effect as though made on and as of the Closing Date.
Company shall have duly performed and complied with all covenants and agreements
and conditions required by this Agreement to be performed or complied with by
Company prior to or on the Closing Date. Company shall have delivered to
Purchaser a duly authorized, properly executed certificate or certificates of
its President or other appropriate executive level officer, dated the Closing
Date to the foregoing effect.
(B) BOARD APPROVAL. Resolutions of the board of directors of
Company, certified by the Secretary or Assistant Secretary of Company, as of
the Closing Date, shall have been duly adopted and in full force and effect on
such date authorizing the consummation of the transactions contemplated by this
Agreement, and such certificate shall have been delivered to Purchaser.
(C) INCUMBENCY. Certificates of the Secretary or an Assistant
Secretary of Company, dated the Closing Date, as to the incumbency and
signatures of the officers of Company executing this Agreement and other
certificates or documents to be delivered pursuant hereto, together with
evidence of the incumbency of such Secretary or Assistant Secretary, shall have
been delivered to Purchaser.
(D) OTHER CLOSING CONDITIONS. Company shall have duly executed
and delivered to Purchaser the Collaboration Agreement and the Stock Purchase
Agreement and all conditions to Purchaser's obligation to consummate the
transactions contemplated by the Collaboration Agreement and the Stock Purchase
Agreement shall have been satisfied or waived.
(E) PROCEEDINGS AND DOCUMENTS. All other corporate and other
proceedings and actions taken in connection with the transactions contemplated
hereby and all certificates, agreements, instruments and documents mentioned
herein or incident to any such transactions, shall be reasonably satisfactory in
form and substance to Purchaser and its counsel.
5.2. CONDITIONS TO COMPANY'S OBLIGATIONS AT CLOSING. The obligation of
Company to issue the Warrant on the Closing Date is subject to the fulfillment
prior to or on the Closing Date of the following conditions, any of which
conditions may be waived by Company:
(A) REPRESENTATIONS AND WARRANTIES; COVENANTS. The
representations and warranties of Purchaser contained in this Agreement (i)
shall be true and correct at and as of the date hereof and (ii) shall be
repeated and shall be true and correct on and as of the Closing Date (if later
than the date hereof) with the same effect as though made on and as of the
Closing Date. Purchaser shall have duly performed and complied with all
covenants and agreements and conditions required by this Agreement to be
performed or complied with by Purchaser prior to or on the Closing Date.
Purchaser shall have delivered to Company a duly authorized, properly executed
certificate
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or certificates of an appropriate executive level officer of Purchaser, dated
the Closing Date, to the foregoing effect.
(B) BOARD APPROVAL. To the extent required under Purchaser's
articles of incorporation, bylaws, charters or resolutions of its board of
directors or committees thereof, contractual commitments or otherwise,
resolutions of the board of directors of Purchaser, certified by the Secretary
or Assistant Secretary of Purchaser, as of the Closing Date, shall have been
duly adopted and in full force and effect on such date authorizing the
consummation of the transactions contemplated by this Agreement, and such
certificate shall have been delivered to Company.
(C) INCUMBENCY. Certificates of the Secretary or an Assistant
Secretary of Purchaser, dated the Closing Date, as to the incumbency and
signatures of the officers of Purchaser executing this Agreement and other
certificates or documents to be delivered pursuant hereto, together with
evidence of the incumbency of such Secretary or Assistant Secretary, shall have
been delivered to Company.
(D) OTHER CLOSING CONDITIONS. Purchaser shall have duly
executed and delivered to Company the Collaboration Agreement and the Stock
Purchase Agreement and all conditions to Company's obligation to consummate the
transactions contemplated by the Collaboration Agreement and the Stock Purchase
Agreement shall have been satisfied or waived.
(E) PROCEEDINGS AND DOCUMENTS. All other corporate and other
proceedings and actions taken in connection with the transactions contemplated
hereby and all certificates, agreements, instruments and documents mentioned
herein or incident to any such transactions, shall be reasonably satisfactory in
form and substance to Company and its counsel.
5.3 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The obligations of the
parties to consummate the transactions contemplated hereby shall be subject to
the fulfillment on or prior to the Closing Date of the following conditions:
(A) HSR ACT NOTIFICATION. In respect of any necessary
notifications of Purchaser and Company pursuant to the HSR Act, if applicable,
the applicable waiting period and any extensions thereof shall have expired or
been terminated.
(B) NO INJUNCTION, ETC. Consummation of the transactions
contemplated hereby or by the Collaboration Agreement shall not have been
restrained, enjoined or otherwise prohibited by any Applicable Law, including
without limitation any order, injunction, decree, or judgment of any court or
other Governmental Authority. No court or other Governmental Authority shall
have determined any Applicable Law to make illegal the consummation of the
transactions contemplated hereby, and no proceeding with respect to the
application of any such Applicable Law to such effect shall be pending.
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(C) QUALIFICATION UNDER SECURITIES LAWS. All registrations,
qualifications, permits and approvals, if any, required under the Securities
Act and applicable state and foreign securities laws to be obtained prior to
execution, delivery and performance of this Agreement, including the offer and
sale of the Warrant, shall have been obtained.
6. REPRESENTATIONS AND WARRANTIES BY COMPANY. Company represents
and warrants to Purchaser as of the date hereof and as of the Closing Date that,
except as set forth on a Schedule of Exceptions attached hereto:
6.1 CORPORATE STATUS; AUTHORIZATION, ETC. Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware with full corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery by
Company of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all requisite corporate action of Company.
Company has duly executed and delivered this Agreement. This Agreement is the
valid and legally binding obligation of Company enforceable against Company in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium, and similar laws affecting creditors' rights
generally, and to the availability of equitable remedies (whether asserted at
law or in equity).
6.2 NO CONFLICTS, ETC. The execution, delivery, and performance
by Company of this Agreement and the consummation of the transactions
contemplated hereby do not and will not conflict with or result in a violation
of or under (i) the certificate of incorporation or bylaws of Company or (ii)
any Applicable Law applicable to Company or any of its properties or assets
except, in the case of clause (ii), for violations and defaults that,
individually and in the aggregate, have not and will not have a Material Adverse
Effect on Company.
6.3 LITIGATION. There is no action, claim, suit, or proceeding
pending, or to the best knowledge of Company, threatened, by or against or
affecting Company in connection with or relating to the transactions
contemplated by this Agreement or of any action taken or to be taken in
connection herewith or the consummation of the transactions contemplated hereby.
6.4 BROKERS, FINDERS, ETC. All negotiations relating to this
Agreement and the transactions contemplated hereby have been carried on without
the participation of any Person acting on behalf of Company in such manner as to
give rise to any valid claim against Purchaser for any brokerage or finder's
commission, fee or similar compensation.
6.5 CAPITAL STRUCTURE OF COMPANY. As of the date of this
Agreement, the authorized capital stock of Company consists of 40,000,000 shares
of Company Common Stock, par value $.001 per share, and 25,000,000 shares of
preferred stock, par value $.001 per share. At the close of business on June
30, 1998, 24,999,979 shares of Company Common Stock were issued and outstanding,
no shares of Company's preferred stock were issued and outstanding and 4,112,820
shares of Company's Common Stock were reserved for issuance under Company's
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stock plans. The Warrant Shares are duly authorized and have been reserved for
issuance upon exercise of the Warrant. All of the outstanding shares of Company
Common Stock are, and the Warrant Shares, when issued against payment therefor
and otherwise in accordance with this Agreement and the Warrant, will be, duly
authorized, validly issued, fully paid and nonassessable. The Warrant, when
issued pursuant to the terms of this Agreement, and the Warrant Shares, when
issued against payment therefor and otherwise in accordance with this Agreement
and the Warrant, will be free of any liens or encumbrances created by or as a
result of action or inaction by Company, other than restrictions on transfer
under federal and state securities laws as set forth herein, and as may be
required by future changes in such laws. None of the Warrant Shares, when issued
against payment therefor in accordance with this Agreement and the Warrant, will
be subject to preemptive rights created by statute, Company's certificate of
incorporation or bylaws or any agreement to which Company is a party or bound.
There are no bonds, debentures, notes or other indebtedness of Company having
general voting rights (or convertible into securities having such general voting
rights( ("Voting Debt") issued and outstanding. Except as set forth above, in
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the SEC Documents, or in Schedule 3.5 to the Stock Purchase Agreement, which
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schedule is incorporated herein by this reference as if fully set forth herein,
as of the date hereof, and except for shares of Company Common Stock issued or
issuable in an aggregate amount not to exceed 250,000 shares, (i), there are no
shares of capital stock or other voting securities of Company authorized, issued
or outstanding, (ii) there are no existing options, warrants, calls, preemptive
rights, subscriptions, or other rights, agreements, arrangements, or commitments
of any character, (A) relating to the issued or unissued capital stock of
Company, (B) obligating Company to issue, transfer or sell, or cause to be
issued, transferred or sold, any shares of capital stock or Voting Debt of, or
other equity securities in, or securities convertible into or exchangeable for
such shares or equity securities, in Company, or (C) obligating Company to
grant, extend, or enter into any such option, option, warrant, call,
subscription or other right, agreement, arrangement or commitment.
6.6 SEC DOCUMENTS. Since July 1, 1997, Company has timely made all
filings with the Commission it has been required to make under the Securities
Act and under the Exchange Act (such filings being collectively referred to
herein as, the "SEC Documents"). Each of the SEC Documents filed with the
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Commission complied with the applicable disclosure requirements of the
Securities Act and Exchange Act in all material respects on the date of filing.
None of the SEC Documents, as of their respective dates, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements made therein, in light of the circumstances in
which they were made, not misleading. For purposes of this Agreement, the term
"SEC Documents" shall also mean and include all exhibits to such SEC Documents
filed by Company with the Commission (and those exhibits filed previously with
the Commission by Company and referenced or incorporated by reference in such
SEC Documents), and all financial statements (including the notes thereto) of
Company included in such SEC Documents or otherwise previously filed with the
Commission by Company.
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6.7 NO UNTRUE STATEMENTS OR OMISSIONS. No representation or
warranty contained in this Agreement or in any schedule hereto contains, to the
knowledge of Company, any untrue statement of a material fact or omits a
material fact necessary to make the statements contained herein or therein, in
light of the circumstances under which they are made, not misleading.
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Company as of the date hereof and as of the Closing Date, and hereby
covenants, that:
7.1 REPRESENTATIONS AND WARRANTIES AS TO INVESTMENT. With respect to
its purchase of the Warrants and, upon exercise of the Warrant, the Warrant
Shares, hereunder, Purchaser represents and warrants to Company that:
(a) Purchaser understands that the neither the Warrant nor the
Warrant Shares have been registered under the Securities Act or applicable state
or federal securities laws on the grounds that such shares are being issued in a
transaction exempt from the registration requirements of the Securities Act and
such state or federal securities laws.
(b) Purchaser is acquiring its interest in the Warrant and the
Warrant Shares solely for its own account and not with a view to or for resale
in connection with any distribution thereof within the meaning of the Securities
Act or any applicable state or foreign securities laws.
(c) By reason of its knowledge, sophistication and experience in
business and financial matters and its financial condition, Purchaser is capable
of evaluating the merits and risks of an investment in the Warrant and the
Warrant Shares pursuant to the terms of this Agreement and the Warrant, is able
to protect its own interest in connection with the transactions contemplated
hereunder and is able to bear the economic risk of such investment and is able
to afford a complete loss of such investment.
(d) Purchaser is an "accredited investor" as that term is
defined in Rule 501 of Regulation D under the Securities Act.
(e) Purchaser has had an opportunity to review all documents and
other materials filed by Company with the Commission, including the SEC
Documents, and has been given an opportunity to ask such questions of Company's
officers concerning the terms and conditions of its acquisition of the Warrant
and the Warrant Shares and Company's business, operations, financial condition,
assets, liabilities and other relevant matters as it may have deemed necessary
or desirable, in order to evaluate the merits and risks of the investment
contemplated herein.
7.2 CORPORATE STATUS; AUTHORIZATION, ETC. Purchaser is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Missouri with full
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corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery by Purchaser of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite corporate action of Purchaser. Purchaser has duly executed and
delivered this Agreement. This Agreement is the valid and legally binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, receivership,
moratorium and similar laws affecting creditors' rights generally, and to the
availability of equitable remedies (whether asserted at law or in equity).
7.3 NO CONFLICTS, ETC. The execution, delivery and performance by
Purchaser of this Agreement and the consummation of the transactions
contemplated hereby do not and will not conflict with or result in a violation
of or under (i) the articles of incorporation or bylaws of Purchaser or (ii) any
Applicable Law applicable to Purchaser or any of its properties or assets
except, in the case of clause (ii), for violations and defaults that,
individually and in the aggregate, have not and will not have a Material Adverse
Effect on Purchaser.
7.4 LITIGATION. There is no action, claim, suit, or proceeding
pending, or to the best knowledge of Purchaser, threatened, by or against or
affecting Purchaser in connection with or relating to the transactions
contemplated by this Agreement or of any action taken or to be taken in
connection herewith or the consummation of the transactions contemplated hereby.
7.5 BROKERS, FINDERS, ETC. All negotiations relating to this
Agreement and the transactions contemplated hereby have been carried on without
the participation of any Person, entity or association acting on behalf of
Purchaser in such manner as to give rise to any valid claim against Company for
any brokerage or finder's commission, fee or similar compensation.
8. COVENANTS.
8.1 COVENANTS OF COMPANY. Company covenants and agrees that from
the date hereof until the Closing Date (and thereafter with respect to any
covenant or agreement extending beyond the Closing Date), except as otherwise
expressly permitted or required by this Agreement or the Collaboration Agreement
or except as otherwise consented to by Purchaser in its writing:
(a) Company will use all reasonable good faith efforts to take
all actions and to do all things necessary, proper or advisable to consummate
the transactions contemplated hereby by the Closing Date.
(b) As promptly as practicable, Company will file or supply, or
cause to be filed or supplied, all applications, notifications and information
required to be filed or supplied by it pursuant to Applicable Law in connection
with this Agreement and the consummation of the other transactions contemplated
hereby or the Collaboration Agreement, including without limitation all filings
required under the HSR Act.
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(c) As promptly as practicable, Company will use all reasonable
efforts to obtain, or cause to be obtained, all Consents (including, without
limitation, all Governmental Approvals) necessary to be obtained by it in order
to consummate the transactions contemplated hereby.
(d) Company will coordinate and cooperate with Purchaser in
exchanging such information and supplying such assistance as may be reasonably
requested by Purchaser in connection with the filings and other actions
contemplated by Section 8.2.
(e) At all times prior to the Closing Date, Company will
promptly notify Purchaser in writing of any fact, condition, event or occurrence
known to Company in the exercise of reasonable business prudence that will or
may result in the failure of any of the conditions contained in Sections 5.1 and
5.3 to be satisfied, promptly upon becoming aware of the same.
(f) Except as otherwise required by Applicable Law , Company
shall not issue any news release or other public announcement, written or oral,
whether in the public press or stockholders' reports (if applicable), or
otherwise, relating to the existence of or the performance under this Agreement,
without the prior written approval of Purchaser not to be unreasonably withheld
or delayed more than ten (10) Business Days.
(g) Upon receipt of evidence reasonably satisfactory to Company
of the loss, theft, destruction or mutilation of any Warrant or any Warrant
Shares and, in the case of any such loss, theft or destruction, upon receipt of
indemnity reasonably satisfactory to Company, or in the case of any such
mutilation, upon surrender and cancellation of any certificate therefor, Company
will make and deliver, in lieu of such lost, stolen, destroyed or mutilated
security, a new certificate of like nature and number.
(h) Company will use its best efforts to cause the Warrant
Shares to be listed or quoted, when issued and subject to official notice of
issuance, on all automated quotation systems on which the Company Common Stock
is quoted or listed as of the date hereof, or, for so long as Purchaser or any
Registered Holder (as defined in the Warrant) holds any Warrant Shares, on any
other national securities exchange on which the Company Common Stock may in the
future be listed, including without limitation filing all necessary additional
shares notification forms and, with respect to any future listing of the
Purchased Shares on any national securities exchange, entering into customary
listing applications and agreements with such exchange.
(i) For so long as Purchaser or any Registered Holder (as
defined in the Warrant) holds any Warrant Shares, Company will use its best
efforts to maintain the current listing or quotation of the Company Common Stock
on the Nasdaq Stock Market-National Market or, if such securities are in the
future listed on any national securities exchange, on such exchange.
(j) For so long as Purchaser or any Registered Holder (as
defined in the Warrant) holds any Warrant Shares, Company will use its best
efforts to file any periodic or current
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reports required to be filed by it under the Exchange Act, and will take such
further actions within its control as may be reasonably requested by Purchaser
and which are required to enable Purchaser to sell the Warrant Shares without
registration thereof in accordance with Rule 144 or Rule 144A promulgated under
the Securities Act, as amended from time to time (or any similar rules adopted
by the Commission after the date hereof); provided, however, that nothing herein
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shall require Company to qualify as a foreign corporation or consent to general
service of process in any jurisdiction in which it is not otherwise so qualified
or required to be qualified or in which it has not already consented to such
general service of process.
8.2 COVENANTS OF Purchaser. Purchaser covenants and agrees that
from the date hereof until the Closing Date (and thereafter with respect to any
covenant or agreement extending beyond the Closing Date), except as otherwise
expressly permitted or required by this Agreement or the Collaboration Agreement
or except as otherwise consented to by Purchaser in its writing:
(a) Purchaser will use all reasonable good faith efforts to take all
actions and to do all things necessary, proper or advisable to consummate the
transactions contemplated hereby by the Closing Date.
(b) As promptly as practicable, Purchaser will file or supply, or
cause to be filed or supplied, all applications, notifications, and information
required to be filed or supplied by Purchaser pursuant to Applicable Law in
connection with this Agreement and the consummation of the transactions
contemplated hereby , including, without limitation, all filings required under
the HSR Act.
(c) As promptly as practicable, Purchaser will use all reasonable
efforts to obtain, or cause to be obtained, all Consents (including without
limitation all Governmental Approvals) that are necessary to be obtained by it
in order to consummate the transactions contemplated hereby.
(d) Purchaser will coordinate and cooperate with Company in
exchanging such information and supplying such reasonable assistance as may be
reasonably requested by Company in connection with the filings and other actions
contemplated by Section 8.1.
(e) At all times prior to the Closing Date, Purchaser will promptly
notify Company in writing of any fact, condition, event or occurrence that will
or may result in the failure of any of the conditions contained in Sections 5.2
and 5.3 to be satisfied, promptly upon becoming aware of the same.
(f) Except as otherwise required by Applicable Law, Purchaser shall
not issue any news release or other public announcement, written or oral,
whether in the public press or stockholders' reports (if applicable), or
otherwise, relating to the existence of or the performance under this Agreement,
without the prior written approval of Company not to be unreasonably withheld or
delayed more than ten (10) Business Days.
12
(g) Purchaser agrees with Company that the certificates evidencing
the Warrant, the Warrant Shares, and each certificate issued in transfer or
exchange of any of the forgoing, will bear substantially the following legend:
"The securities evidenced by this certificate have not been registered
under the Securities Act of 1933 or the securities or blue sky laws of any
state, and may not be sold or transferred unless there is an effective
registration statement under such Act and any applicable state securities
laws covering such securities or such sale or transfer is exempt from the
registration and prospectus delivery requirements of such Act and
applicable state securities laws. The securities are subject to and
entitled to the benefits of a Common Stock Warrant Purchase Agreement and
may not be transferred, sold or otherwise disposed of, except as therein
provided."
(h) Purchaser covenants that in no event will it, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any the Warrant or any of the Warrant Shares or any interest therein
(or solicit any offers to buy, purchase, or otherwise transfer, acquire or
dispose of the Warrant or any of the Warrant Shares or any interest therein) in
violation of the Securities Act, the Exchange Act or applicable state or foreign
laws and regulations related to the issuance of securities. Furthermore,
Purchaser acknowledges that the Company will place a stop transfer or similar
notation in its records that the Warrant and the Warrant Shares cannot be
transferred absent compliance with the restrictions on transfer described in
this Agreement.
9. MISCELLANEOUS.
9.1 WAIVERS AND AMENDMENTS. With the written consent Company and
Purchaser, if it is then the Holder of one or more Warrants representing the
right to acquire at least fifty percent (50%) of the shares of Company Common
Stock represented by the Warrant on the date hereof, subject to adjustment as
set forth in the Warrant, or, if not, the Holder or Holders of the Warrant or
Warrant Shares thereby adversely affected, the obligations of Company and the
rights of the Holders of the Warrant and Warrant Shares under this Agreement may
be waived (either generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely), and
(b) Company may enter into a supplementary agreement for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of any supplemental agreement or modifying in any manner
the rights and obligations hereunder of the Holders of the Warrant and Warrant
Shares and Company. Each Holder of Warrant Shares shall have the absolute right
to exercise or refrain from exercising any right or rights which such Holder may
have by reason of this Agreement or its status as a Holder of the Warrant,
including, without limitation, the right to consent to the waiver of any
obligation of Company under this Agreement and to enter into an agreement with
Company for the purpose of modifying this Agreement or any agreement effecting
any such modification, and such Holder shall not incur any liability to any
other Holder or Holders of Warrant Shares with respect to exercising or
refraining from exercising any such right or rights.
13
9.2 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be personally delivered
(professional courier such as Federal Express acceptable) to, or mailed by first
class air mail, postage prepaid, addressed to:
(a) If to any Holder of any of the Warrant or any Warrant
Shares other than Purchaser, addressed to such Holder at such address as such
Holder may specify by written notice to Company, or
(b) If to Company, to Heska Corporation, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President, with a copy to the
General Counsel of Company at the address of Company, or at such other address
as Company may specify by written notice to Purchaser, or
(c) if to Purchaser, to ▇▇▇▇▇▇▇ Purina Company, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.,General
Counsel, or such other address as the Purchaser shall have furnished to the
Company pursuant hereto, with a copy to ▇▇▇▇▇▇▇ ▇▇▇, Esq., Pet Products Division
Counsel.
9.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties made in, pursuant to or in connection with this
Agreement shall survive the execution and delivery of this Agreement and the
closing of the transactions contemplated hereby for a period of three (3) years
following the Closing, except that the representations and warranties of Company
set forth in Sections 6.6 and 6.7 hereof shall survive the Closing of the
transactions contemplated hereby for a period of one (1) year.
9.4 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto, including any permitted Holder of the Warrant.
9.5 GOVERNING LAW. This Agreement and the Warrant shall be governed
by and construed under the laws of the State of Delaware, without regard to the
provisions thereof concerning the application of the laws of other
jurisdictions.
9.6 ENTIRE AGREEMENT. This Agreement and the Warrant shall constitute
the full and entire understanding and agreement between the parties with regard
to the subject hereof and shall supersede any prior agreements or
representations, whether written or oral, with respect to the subject matter
hereof.
9.7 EXPENSES. Company and Purchaser shall each bear their own
expenses, fees and costs (including attorneys', auditors' and financing
commitment fees and any filing fees payable under the HSR Act) in connection
with the transactions contemplated hereby, including the
14
preparation, execution, and delivery of this Agreement, the issuance of the
Warrant and compliance herewith, whether or not the transactions contemplated
hereby shall be consummated. in connection with the consummation of this
transaction.
9.8 TITLES AND SUBTITLES. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
9.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by facsimile, each of which shall be deemed an original, but
all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned have caused this Common Stock
Warrant Purchase Agreement to be duly executed and delivered by their respective
duly authorized officers on the day and year first above written,
▇▇▇▇▇▇▇ PURINA COMPANY, a Missouri corporation.
By /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Its: Co-Chief Executive Officer
HESKA CORPORATION:
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Its: President and CEO
15
ANNEX A
-------
THE WARRANT REPRESENTED BY THIS CERTIFICATE WAS ORIGINALLY ISSUED ON JULY
30, 1998, AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE TRANSFER OF THE WARRANT REPRESENTED BY THIS CERTIFICATE IS
SUBJECT TO THE CONDITIONS SPECIFIED IN A COMMON STOCK WARRANT PURCHASE
AGREEMENT DATED JULY 29, 1998. THE COMPANY RESERVES THE RIGHT TO REFUSE THE
TRANSFER OF SUCH WARRANT UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH
RESPECT TO SUCH TRANSFER. A COPY OF SUCH AGREEMENT SHALL BE FURNISHED BY
THE COMPANY TO THE REGISTERED HOLDER HEREOF UPON WRITTEN REQUEST AND
WITHOUT CHARGE.
HESKA CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
--------------------------------------------------
Date of Issuance: July 30, 1998 Certificate No. W-RP-1
For value received, Heska Corporation, a Delaware corporation (the
"Company"), hereby grants to ▇▇▇▇▇▇▇ Purina Company, a Missouri corporation
("Purchaser"), or its registered assigns (together with the Purchaser, the
"Registered Holder"), the right to purchase from the Company One Million One
Hundred Sixty Five Thousand Five Hundred Ninety Two (1,165,592) shares of
Common Stock at the Warrant Purchase Price (as adjusted from time to time
hereunder, the "Exercise Price"). This Warrant is issued pursuant to the terms
of the Common Stock Warrant Purchase Agreement of even date (the "Agreement"),
among the Company and the Purchaser. Certain capitalized terms used herein are
defined in Section 4 hereof. Capitalized terms used but not otherwise defined
herein shall have the meanings set forth for such terms in the Agreement.
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
-------------------
1A. Exercise Period. The Registered Holder may exercise, in whole or
---------------
in part , the purchase rights represented by this Warrant at any time and from
time to time (i) beginning after the Date of Issuance, (ii) up to and including
the third anniversary of such date (the "Exercise Period").
16
1B. Exercise Procedure.
------------------
(i) This Warrant shall be deemed to have been exercised when the
Company has received all of the following items (the "Exercise Time"):
(a) a completed Exercise Agreement, as described in Section
1C below, executed by the Registered Holder exercising all or part of the
purchase rights represented by this Warrant;
(b) this Warrant;
(c) if this Warrant is not registered in the name of the
Registered Holder, an Assignment or Assignments in the form set forth in
Exhibit II hereto evidencing the assignment of this Warrant to the
----------
Registered Holder in which case the Registered Holder shall have complied
with the provisions set forth in Section 6 hereof; and
(d) a certified check payable to the Company in an amount
equal to the product of the Exercise Price multiplied by the number of
Warrant Shares being purchased upon such exercise (the "Aggregate Exercise
Price").
(ii) Certificates for Warrant Shares purchased upon exercise of
this Warrant shall be delivered by the Company or the transfer agent and
registrar of the Company Common Stock to the Registered Holder within ten (10)
Business Days after the date of the Exercise Time. Unless this Warrant has
expired or all of the purchase rights represented hereby have been exercised,
the Company shall prepare a new Warrant, substantially identical hereto,
representing the rights formerly represented by this Warrant which have not
expired or been exercised and shall, within such ten-day period, deliver such
new Warrant to the Registered Holder designated for delivery in the Exercise
Agreement. The Company shall not issue any fractional share of Common Stock upon
exercise of this Warrant. Instead, the Company shall deliver its check for the
current market value of the fractional share. The current market value of a
fraction of a share is determined by multiplying the Current Market Price (as
defined in Section 4 below) of one full share of Common Stock on the last
trading date prior to the Exercise Time by the fraction of a share and rounding
the result to the nearest cent.
(iii) The Warrant Shares issuable upon the exercise of this Warrant
shall be deemed to have been issued to the Registered Holder at the Exercise
Time, and the Registered Holder shall be deemed for all purposes to have become
the record holder of such Warrant Shares at the Exercise Time.
(iv) In case the Exercise Agreement specifying the name or names in
which the Registered Holder wishes the certificate or certificates for
Warrants or Warrant Shares to be issued shall specify a name or names other
than that of such Registered Holder, or in case any
17
Registered Holder otherwise wishes to assign all or any part of this Warrant,
such Exercise Agreement or Assignment shall be accompanied by the payment of all
transfer, issuance, documentary stamp or other taxes and duties payable upon
issuance and delivery of the Warrant Shares or upon such assignment in such name
or names.
(v) The Company shall not close its books against the transfer
of this Warrant or any Warrant Shares issued or issuable upon the exercise of
this Warrant in any manner which interferes with the timely exercise of this
Warrant. The Company shall from time to time take all such action as may be
necessary to assure that the par value per share of the unissued Warrant Shares
acquirable upon exercise of this Warrant is at all times equal to or less than
the Exercise Price then in effect.
(vi) The Company shall reasonably assist and cooperate with any
Registered Holder required to make any governmental filings or obtain any
governmental approvals prior to or in connection with any exercise of this
Warrant (including, without limitation, making any filings required to be made
by the Company).
(vii) The Company shall at all times reserve and keep available
out of its authorized but unissued shares of Common Stock, solely for the
purpose of issuance upon the exercise of the Warrant, such number of shares of
Common Stock or other shares of capital stock of the Company as from time to
time may be issuable upon the full exercise of this Warrant. All Warrant Shares
or other securities which are so issuable shall, when issued, be duly and
validly issued, fully paid and nonassessable and free from all liens and
encumbrances, other than those imposed by the Agreement, those incurred or
suffered by Purchaser or a Registered Holder, and restrictions imposed under
applicable federal and state securities laws. The Company shall take all
reasonable actions as may be necessary to assure that all such Warrant Shares
may be so issued without violation of any applicable federal securities law or
any requirements of any domestic securities exchange upon which the Warrant
Shares may be listed (except for official notice of issuance which shall be
delivered by the Company upon each such issuance).
1C. Exercise Agreement. Upon any exercise of this Warrant, the
------------------
Exercise Agreement in the form set forth in Exhibit I hereto shall be completed,
---------
executed and delivered to Company, except that if the Warrant Shares are not to
be issued in the name of the Registered Holder in whose name this Warrant is
registered, the Exercise Agreement shall also state the name of the Registered
Holder or other permitted Person to whom the certificates for the Warrant
Shares are to be issued, and if the number of Warrant Shares to be issued does
not include all the Warrant Shares purchasable hereunder, it shall also state
the name of the Person to whom a new Warrant certificate for the unexercised
portion of the rights hereunder is to be delivered. Such Exercise Agreement
shall be dated the actual date of execution thereof.
18
Section 2. Certain Adjustments. The number of Warrant Shares obtainable
-------------------
upon exercise of this Warrant, and the Exercise Price, shall be subject to
adjustment from time to time as provided in this Section 2.
2A. Adjustment of Exercise Price for Changes in Capital Stock. If at
---------------------------------------------------------
any time after the Date of Issue and during the Exercise Period the Company:
(i) subdivides its outstanding shares of Common Stock into a greater number of
shares; (ii) combines its outstanding shares of Common Stock into a smaller
number of shares; (iii) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock or in other shares of its capital stock or
in evidences of indebtedness of Company or other property of Company (other than
cash); or (iv) issues by reclassification of its Common Stock any shares of its
capital stock, then, in each such case, the Exercise Price in effect immediately
prior to such action shall be adjusted so that the Registered Holder may receive
upon exercise of this Warrant and payment of the same aggregate consideration
the number of shares of Common Stock of the Company which the Registered Holder
would have owned immediately following such action if such Registered Holder had
exercised this Warrant immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution, immediately after the effective
date in the case of a subdivision, combination or reclassification, and
immediately after the effective date with respect to all other events resulting
in an adjustment hereunder.
2B. Adjustment for Reorganization, Consolidation, Merger or Sale. If
------------------------------------------------------------
at any time after the Date of Issue and prior to the expiration of the Exercise
Period, the Company consummates any capital reorganization or other change of
outstanding shares of Common Stock of the Company (other than a subdivision or
combination of the outstanding Common Stock and other than a change in the par
value of the Common Stock or reclassification set forth in paragraph 2A above)
or in the event of any consolidation or merger of the Company with or into
another unaffiliated corporation (other than a merger in which the Company is
the continuing corporation and does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock of the
class issuable upon exercise of this Warrant ) or in the event of any sale,
lease, transfer or conveyance to another unaffiliated corporation of the
property or assets of the company as an entirety or substantially as an entirety
(each such event being referred to herein as an "Organic Change"), then prior to
the consummation of such Organic Change, the Company will utilize its
commercially reasonable best efforts to make appropriate provision to be made so
that the Registered Holders of the Warrant who has not elected to exercise such
Warrant shall thereafter have the right, by exercising the Warrant, to acquire
and receive in lieu of or in addition to (as the case may be) the Warrant Shares
immediately theretofore acquirable and receivable upon the exercise of such
Registered Holder's Warrant, such shares of stock, securities, properties or
assets as may be issued or payable with respect to or in exchange for the number
of Warrant Shares immediately theretofore acquirable and receivable upon
exercise of such Registered Holder's Warrant had such capital reorganization or
Organic Change not taken place, and, if such provision is not agreed to by the
acquiring Person or if it is a condition to such transaction that it be
accounted for as a "pooling
19
of interests" or as a tax free reorganization and such provision would cause, in
the opinion of Company's or the acquiring Person's accountants or tax counsel,
the failure of such condition, then Company shall in lieu of such provision
provide notice to such Registered Holder of such Organic Change so that the
Registered Holders will have opportunity to exercise the Warrant prior to
consummation of such Organic Change.
2C. Deferral of Issuance or Payment. In any case in which an event
-------------------------------
covered by Section 2A shall require that an adjustment in the Exercise Price be
made effective as of a record date or an effective date, the Company may elect
to defer until consummation of such event (i) issuing to the Registered Holder,
if this Warrant is exercisable after such record or effective date, the shares
of Common Stock of the Company, if any, issuable upon such exercise over and
above the shares of Common Stock of the Company, if any, issuable upon such
exercise on the basis of the Exercise Price in effect prior to such adjustment,
and (ii) paying to the Registered Holder by check any amount in lieu of the
issuance of fractional shares pursuant to Section 1B(ii) hereof.
2D. When No Adjustment Required. No adjustment need be made pursuant
---------------------------
to this Section 2 or otherwise for (i) a change in the par value of the Common
Stock (ii) in connection with the issuance of Warrant Shares upon exercise of
the Warrant.
Section 3. Certificates, Notices and Consents.
----------------------------------
3A. Certificates. Upon the occurrence of any event requiring
------------
adjustments of the Exercise Price or number or kind of shares subject to this
Warrant pursuant to Section 2, the Company shall mail to the Registered Holders
a certificate signed by the President or a Vice President and by the Treasurer
or an Assistant Treasurer of the Company, setting forth in reasonable detail the
events requiring the adjustment and the method by which such proposed adjustment
was calculated, specifying the adjusted Exercise Price or number or kind of
shares subject to this Warrant after giving effect to the proposed adjustments.
3B. Failure and Defects. Failure to file any certificate or to mail
-------------------
any notice, or any defect in any certificate or notice, pursuant to Section 3A,
shall not affect the legality or validity of the adjustment of the Exercise
Price or number or kind of Warrant Shares subject to this Warrant pursuant to
Section 2, or otherwise affect the legality or validity of any action required
to be set forth in such certificate or notice.
Section 4. Definitions. The following terms have meanings set forth
-----------
below:
"Common Stock" shall mean the Company's currently authorized shares of
------------
common stock, par value $.001 per share, together with any equity securities of
any class of the Company hereinafter authorized which shall not be limited to a
fixed sum or percentage in respect of the rights of the holders thereof to
participate in dividends or distributions of assets upon the voluntary or
involuntary dissolution or winding up of the Company. However, subject to the
provisions of Section 2A hereof, shares issuable upon exercise hereof shall
include only shares of the class
20
designated as Common Stock of the Company as of the date hereof or shares of any
class or classes resulting from any reclassification thereof.
"Current Market Price" shall mean, with respect to a specific date,
--------------------
the last reported sales price of the Common Stock in the over-the-counter
market, as reported by NASDAQ or, if listed on a national securities exchange on
the date of determination, the last reported sales price of the Common Stock on
such exchange, or if there are no transactions in the Common Stock on such day
then the Current Market Price shall be the last sales price on the over-the-
counter market or on such exchange, as the case may be, on the last preceding
day on which there was a transaction in the Common Stock. In the event the
Common Stock is not so listed or traded on a date such Current Market Price is
to be determined, the Current Market Price shall be determined by the Company
and the Registered Holders of Warrants to purchase not less than fifty percent
(50%) of the Warrant Shares subject to issuance at such time, or if the parties
cannot so agree, then such Current Market Price shall be determined on the basis
of the an average of the fair market values as of such date as determined by two
or more independent and well-qualified experts in the appraisal of stock values
reasonably acceptable to Purchaser and Company.
"Date of Issuance" shall mean the date of initial issuance of the
----------------
Warrant shown on the first page of this Warrant, regardless of the number of
times new certificates representing the unexpired and unexercised rights
formerly represented by this Warrant shall be issued.
"Registered Holder" with respect to the Warrant means the Person who
-----------------
is reflected as the holder thereof on the register maintained by the Company or
the transfer agent and registrar of the Common Stock for such purpose and
"Registered Holders" at any time means all Registered Holders of Warrants.
"Warrant Purchase Price" shall have the meaning assigned to it in the
----------------------
Agreement.
"Warrant Shares" means the Common Stock of the Company issuable upon
--------------
exercise of the Warrant; provided that if there is a change in the class of
securities so issuable, then the term "Warrant Shares" shall mean shares of the
security issuable upon exercise of the Warrant as provided in Section 2 herein
if such security is issuable in shares, or shall mean the units in which such
security is issuable if such security is not issuable in shares.
All other terms defined elsewhere in this Warrant shall have the
meanings defined herein. All capitalized terms not defined herein and defined in
the Agreement shall have the meanings ascribed to such terms in the Agreement.
Section 5. Rights of the Registered Holders. No Registered Holder
--------------------------------
(including without limitation Purchaser) shall by virtue of hereof, and nothing
in this Warrant or the interest represented hereby or the Warrant Shares
issuable purchasable hereunder, or the Agreement, shall entitle the Registered
Holder or other holder hereof to, exercise any rights as a stockholder of
Company, either at law or equity, until, and only to the extent that, this
Warrant shall have been
21
exercised in accordance with its terms. The rights of the Registered Holders
shall be limited to those set forth in this Warrant and the Agreement. Without
limiting the generality of the foregoing, no Registered Holder or other holder
of this Warrant shall or shall be entitled to exercise any rights to vote or
consent or receive notice as a stockholder of the Company on any matters or with
respect to any rights whatsoever as a stockholder of the Company. No dividends
or interest shall be payable or accrued in respect of this Warrant or the
Warrant Shares.
Section 6. Warrant Transferable. Subject to the transfer conditions
--------------------
referred to in the legend endorsed hereon and subject to the terms and
conditions of the Agreement, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant with a
properly executed Assignment (in the form of Exhibit II hereto) at the principal
----------
office of the Company and compliance with the terms of the Agreement.
Section 7. Warrant Exchangeable for Different Denominations. This
------------------------------------------------
Warrant is exchangeable, upon the surrender hereof by the Registered Holder at
the principal office of the Company, for new Warrants of like tenor representing
in the aggregate the purchase rights hereunder, and each of such new Warrants
shall represent such portion of such rights as is designated by the Registered
Holder at the time of such surrender. All Warrants representing portions of the
rights hereunder are referred to herein as the "Warrant."
Section 8. Replacement. Upon receipt of an affidavit reasonably
-----------
satisfactory to the Company of the loss, theft, destruction or mutilation of any
certificate evidencing this Warrant, and in the case of any such loss, theft or
destruction, upon receipt of an indemnity reasonably satisfactory to the
Company, or in the case of any such mutilation, upon surrender and cancellation
of such certificate, the Company shall, at the expense of the Registered Holder,
execute and deliver in lieu of such certificate a new certificate of like tenor
and dated the date of such lost, stolen, destroyed or mutilated certificate.
Section 9. Notices. Except as otherwise expressly provided herein,
-------
all notices referred to in this Warrant shall be in writing and shall be
delivered as set forth in the Agreement.
Section 10. Amendment and Waiver. Except as otherwise expressly
--------------------
provided herein, the provisions of this Warrant may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, in accordance with the provisions of Section 9.1
of the Agreement.
Section 11. Descriptive Headings; Governing Law. The descriptive
-----------------------------------
headings of the several Sections of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. All issues concerning the
relative rights of the Company and its stockholders and other internal corporate
affairs of the Company and all other questions concerning the construction,
validity, and interpretation of this Warrant shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, without
giving effect to any choice of law or
22
conflict provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the internal laws of any
jurisdiction other than as set forth herein..
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers and to be dated the date first set
forth above.
HESKA CORPORATION, a Delaware corporation
By:______________________________________
Its: President
23
EXHIBIT I
---------
EXERCISE AGREEMENT
------------------
To: Dated:
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. W-RP-1, hereby agrees to subscribe for the purchase of
_____________ Warrant Shares covered by such Warrant and makes payment herewith
in full at the price per share provided by such Warrant.
Signature__________________________________
Name (Printed)_____________________________
Address _____________________________
_____________________________
EXHIBIT II
----------
ASSIGNMENT
----------
FOR VALUE RECEIVED, _______________________________________
hereby sells, assigns and transfers all of the rights of the undersigned under
the attached Warrant (Certificate No. W-RP-1) with respect to the number of
Warrant Shares covered thereby set forth below, unto:
Name of Assignee Address No. of Warrant Shares
---------------- ------- ---------------------
Dated: Signature______________________________________
Name (Printed)______________________________
Address ______________________________
_____________________________________
_____________________________________