Attached files
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10-K - FORM 10-K - HESKA CORP | c13748e10vk.htm |
EX-3.I - EXHIBIT 3(I) - HESKA CORP | c13748exv3wi.htm |
EX-10.9 - EXHIBIT 10.9 - HESKA CORP | c13748exv10w9.htm |
EX-21.1 - EXHIBIT 21.1 - HESKA CORP | c13748exv21w1.htm |
EX-10.8 - EXHIBIT 10.8 - HESKA CORP | c13748exv10w8.htm |
EX-10.1 - EXHIBIT 10.1 - HESKA CORP | c13748exv10w1.htm |
EX-32.1 - EXHIBIT 32.1 - HESKA CORP | c13748exv32w1.htm |
EX-23.1 - EXHIBIT 23.1 - HESKA CORP | c13748exv23w1.htm |
EX-31.2 - EXHIBIT 31.2 - HESKA CORP | c13748exv31w2.htm |
EX-31.1 - EXHIBIT 31.1 - HESKA CORP | c13748exv31w1.htm |
EX-3.III - EXHIBIT 3(III) - HESKA CORP | c13748exv3wiii.htm |
EX-10.32 - EXHIBIT 10.32 - HESKA CORP | c13748exv10w32.htm |
EX-10.41 - EXHIBIT 10.41 - HESKA CORP | c13748exv10w41.htm |
Exhibit 3(ii)
CERTIFICATE OF AMENDMENT
TO RESTATED
CERTIFICATE OF INCORPORATION
OF
HESKA CORPORATION
TO RESTATED
CERTIFICATE OF INCORPORATION
OF
HESKA CORPORATION
Heska Corporation, a corporation organized and existing under the laws of the State of
Delaware, (the Corporation), does hereby certify that:
1. This Amendment to the Corporations Restated Certificate of Incorporation has been duly
adopted in accordance with the provisions of Section 242 of the General Corporation Law of the
State of Delaware.
2. This Amendment to the Corporations Restated Certificate of Incorporation amends Article IV
of the Corporations Restated Certificate of Incorporation, by deleting the existing Article IV in
its entirety and substituting therefor a new Article IV to read in its entirety as follows:
ARTICLE IV
A. Authorized Stock. The total authorized stock of the Corporation, which shall be an aggregate of
175,000,000 shares, shall consist of three classes: (i) a class consisting of 75,000,000 shares of
existing Common Stock having a par value of $0.001 per share (the Original Common Stock);
(ii) a second class consisting of 75,000,000 shares of NOL Restricted Common Stock having a par
value of $0.001 per share (the Common Stock, and together with the Original Common Stock,
the Common Stock Securities); and (iii) a third class consisting of 25,000,000 shares of
Preferred Stock having a par value of $0.001 per share (the Preferred Stock).
B. Preferred Stock. The Preferred Stock may be issued in any number of series, as determined by
the Board of Directors. The Board of Directors may by resolution fix the designation and number of
shares of any such series, and may determine, alter, or revoke the rights, preferences, privileges
and restrictions granted to or imposed upon any wholly unissued series. The Board of Directors may
thereafter in the same manner, within the limits and restrictions stated in any resolution or
resolutions of the Board of Directors originally fixing the number of shares constituting any
series, increase or decrease the number of shares of any such series (but not below the number of
shares of that series then outstanding). In case the number of shares of any series shall be
decreased, the shares constituting such decrease shall resume the status which they had prior to
the adoption of the resolution originally fixing the number of shares of such series.
C. Common Stock Securities.
1. Relative Rights of Preferred Stock and Common Stock Securities. All preferences,
voting powers, relative, participating, optional or other special rights and privileges, and
qualifications, limitations or restrictions of the Common Stock Securities are expressly made
subject and subordinate to those that may be fixed with respect to any shares of the Preferred
Stock.
2. Relative Rights of Original Common Stock and Common Stock. Except as otherwise
provided in this Article IV, all shares of Original Common Stock and Common Stock shall be
identical and shall entitle the holder thereof to the same preferences, voting powers, relative,
participating, optional or other special rights and privileges, and qualifications, limitations or
restrictions.
3. Voting Rights. Except as otherwise required by law or this Restated Certificate of
Incorporation, the holder or holders of Common Stock Securities shall vote together as one class,
and each holder of Common Stock Securities shall have one vote in respect of each share of such
stock held by such holder of record on the books of the corporation, for the election of directors
and on all matters submitted to a vote of stockholders of the corporation.
4. Dividends. Subject to the preferential rights of the Preferred Stock, if any, the
holders of shares of Common Stock Securities shall be entitled to receive, when and if declared by
the Board of Directors, out of the assets of the corporation which are by law available therefor,
dividends payable either in cash, in property or in shares of capital stock.
5. Liquidation, Dissolution or Winding Up. In the event of any dissolution,
liquidation or winding up of the affairs of the corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holders of shares of the Preferred Stock,
holders of Common Stock Securities shall be entitled, unless otherwise provided by law or this
Restated Certificate of Incorporation, to receive all of the remaining assets of the corporation of
whatever kind available for distribution to stockholders ratably in proportion to the number of
shares of Common Stock Securities held by them respectively.
6. Subdivisions and Combinations of Shares. The corporation shall not in any manner
subdivide (by stock split, stock dividend or otherwise) or combine (by stock split, stock dividend
or otherwise) the outstanding Common Stock or Original Common Stock unless all outstanding Common
Stock Securities are proportionately subdivided or combined.
7. Automatic Conversion. Each share of NOL Restricted Common Stock shall
automatically be converted into the equivalent number of shares of Original Common Stock at the
close of business of the Corporation on the Restriction Release Date. Upon the occurrence of such
automatic conversion, all shares of NOL Restricted Common Stock shall be converted without any
further action by the holders of such shares and whether or not the certificates representing such
shares are surrendered to the Corporation or its transfer agent, and shall no longer be deemed to
be outstanding and all rights with respect to such shares shall immediately cease and terminate,
except only the right to receive shares of Original Common Stock in exchange therefor. Upon the
occurrence of such automatic conversion, the holders of NOL Restricted Common Stock shall, upon
notice from the Corporation, surrender the certificates representing such shares at the office of
the Corporation or of its transfer agent for the Common Stock. Thereupon, there shall be issued
and delivered to such holder a certificate or certificates for the number of shares of Original
Common Stock into which the shares of NOL Restricted Common Stock so surrendered were automatically
converted. The Corporation shall not be obligated to issue such certificates unless certificates
evidencing the shares of NOL Restricted Common Stock so converted are either delivered to the
Corporation or any such transfer agent, or the holder notifies the Corporation that such
certificates have been lost, stolen, or destroyed and executes an agreement satisfactory to the
Corporation to indemnify the Corporation from any loss incurred by it in connection therewith.
Following such automatic conversion, all shares of NOL Restricted Common Stock so converted shall
be retired and cancelled, and the Corporation shall not reissue any shares of NOL Restricted Common
Stock. The Corporation shall, at all times prior to automatic conversion of the NOL Restricted
Common Stock, cause to be authorized and reserved for issuance a number of shares of Original
Common Stock sufficient to permit conversion of the NOL Restricted Common Stock.
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D. Reclassification.
Immediately upon the effectiveness of the filing of this Certificate of Amendment to the
Corporations Restated Certificate of Incorporation with the Secretary of State of the State of
Delaware (the Effective Time), each share of Original Common Stock issued and outstanding
immediately prior to the Effective Time shall be reclassified as and converted into and shall
become one share of NOL Restricted Common Stock (Common Stock, pursuant to the
Reclassification).
The Reclassification of the shares of Original Common Stock into shares of Common Stock shall
be deemed to occur at the Effective Time, regardless of when any certificate previously
representing such shares of Original Common Stock (if such shares are held in certificated form)
are physically surrendered to the Corporation in exchange for certificates representing shares of
such Common Stock. Each certificate outstanding immediately prior to the Effective Time
representing shares of Original Common Stock shall, until surrendered to the Corporation in
exchange for a certificate representing such new number of shares of Common Stock, automatically
represent from and after the Effective Time the reclassified number of shares of Common Stock. All
options and rights issuable or issued with respect to Original Common Stock pursuant to any stock
option plan, employee stock purchase plan or other stock plan of the Corporation prior to the
Effective Time shall represent options and rights for the equivalent number of shares of Common
Stock from and after the Effective Time.
E. Transfer Restrictions.
1. Certain Definitions. As used in this Section E:
Acquire or Acquisition and similar terms means the acquisition of record,
legal, beneficial or any other ownership of Corporation Securities by any means, including, without
limitation, (a) the exercise of any rights under any option, warrant, convertible security, pledge
or other security interest or similar right to acquire shares, or (b) the entering into of any
swap, hedge or other arrangement that results in the acquisition of any of the economic
consequences of ownership of Corporation Securities, but shall not include the acquisition of any
such rights unless, as a result, the acquirer would be considered an owner of Corporation
Securities under the rules of Section 382 of the Code.
Business Day means any day, other than a Saturday, Sunday or day on which banks
located in Denver, Colorado, are authorized or required by law to close.
Code means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
Corporation Securities means (a) shares of Common Stock Securities, (b) shares of
Preferred Stock of any class or series of Preferred Stock (other than Preferred Stock that is not
stock pursuant to Treasury Regulation Sections 1.382-2(a)(3) and 1.382-2T(f)(18)(ii) or any
successor provision), (c) warrants, rights or options (within the meaning of Treasury Regulation
Section 1.382-4(d), or any successor provision) to purchase Stock and (d) any other interests that
would be treated as stock of the Corporation pursuant to Treasury Regulation Section
1.382-2T(f)(18), or any successor provision.
Dispose or Disposition means any direct or indirect sale, transfer,
assignment, conveyance, pledge or other disposition or other action in any manner whatsoever,
whether voluntary or involuntary, by operation of law or otherwise, by any Person or group that
reduces the Percentage Stock Ownership of any Person or group.
Entity means an entity within the meaning of Treasury Regulation Section
1.382-3(a)(1).
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Five Percent Shareholder means (i) a Person or group of Persons that is identified as
a 5-percent shareholder of the Corporation pursuant to Treasury Regulation Section 1.382-2T(g)(1)
(or any successor provision) or (ii) a Person that is a first tier entity or higher tier
entity of the Corporation if that person has a public group or individual, or a higher tier
entity of that Person has a public group or individual, that is treated as a 5-percent
shareholder of the Corporation pursuant to Treasury Regulation Section 1.382-2T(g) or any
successor provision (where the terms first tier entity, higher tier entity and public group
are defined in Treasury Regulation Section 1.382-2T(f) (or any successor provision), but excluding
any public group with respect to the Corporation, as that term is defined in Treasury Regulation
Section 1.382-2T(f)(13) (or any successor provision). For the purposes of determining the
existence and identity of, and the amount of Corporation Securities owned by, any Five Percent
Shareholder, the Corporation is entitled to rely conclusively on (a) the existence and absence of
filings of Schedules 13D or 13G under the Securities Exchange Act of 1934, as amended (or any
similar schedules) as of any date, and (b) its actual knowledge of the ownership of the Corporation
Securities.
Percentage Stock Ownership and similar terms means percentage Stock Ownership of any
Person or group for purposes of Section 382 of the Code, as determined in accordance with Treasury
Regulation Section 1.382-2T(g), (h), (j) and (k) (or any successor provision).
Person means an individual, corporation, estate, trust, association, limited
liability company, partnership, joint venture or similar organization, and also includes a
syndicate or group as those terms are used for the purposes of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
Prohibited Transfer means any purported Transfer of Corporation Securities to the
extent that such a Transfer is prohibited and/or void under this Article IV.
Restriction Release Date means such date, after the Effective Time, that is the
earlier of (i) the date that Section 382 of the Code or any successor statute is repealed if the
Board of Directors determines in good faith that this Article IV is no longer necessary or
advisable for preservation of the Tax Benefits, (ii) the date that the Board of Directors
determines in good faith that it is in the best interests of the Corporation and its stockholders
for the transfer restrictions set forth in this Article IV to terminate, or (iii) January 1, 2026.
Any such determinations by the Board of Directors shall be set forth in a written resolution that
is publicly announced or otherwise made available to stockholders.
Restricted Holder means a Person or group of Persons that (a) is a Five Percent
Shareholder and Acquires or proposes to Acquire Corporation Securities, or (b) is proposing to
Acquire Corporation Securities, and following such proposed Acquisition of Corporation Securities,
would be a Five Percent Shareholder.
Stock means any interest that would be treated as stock of the Corporation
pursuant to Treasury Regulation Sections 1.382-2(a)(3) and 1.382-2T(f)(18) (or any successor
provisions).
Stock Ownership means any direct or indirect ownership of Stock, including any
ownership by virtue of application of constructive ownership rules, with such direct, indirect and
constructive ownership determined under the provisions of Section 382 of the Code.
Tax Benefits means the net operating loss carryovers, capital loss carryovers,
general business credit carryovers, alternative minimum tax credit carryovers and foreign tax
credit carryovers, as well as any loss or deduction attributable to a net unrealized built-in
loss within the meaning of Section 382 of the Code, of the Corporation or any direct or indirect
subsidiary thereof.
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Transfer means any direct or indirect Acquisition or Disposition of Corporation
Securities or other action in any manner whatsoever, whether voluntary or involuntary, by operation
of law or otherwise, that alters the Percentage Stock Ownership of any Person or group, or any
attempt to do any of the foregoing. A Transfer shall also include the creation or grant of an
option (including within the meaning of Treasury Regulation Section 1.382-4(d)). A Transfer shall
not include an issuance or grant of Corporation Securities by the Corporation.
Treasury Regulation means a Treasury Regulation promulgated under the Code.
2. Transfer Restrictions.
(a) From and after the Effective Time and prior to the Restriction Release Date, no Transfer
shall be permitted, and any such purported Transfer shall be void ab initio, to the extent that
after giving effect to such purported Transfer (or any series of Transfers of which such Transfer
is a part), either (i) any Person or group of Persons shall become a Five Percent Shareholder, or
(ii) the Percentage Stock Ownership interest in the Corporation of any Five Percent Shareholder
shall be increased. The prior sentence is not intended to prevent the Corporation Securities from
being DTC-eligible and shall not preclude the settlement of any transactions in the Corporation
Securities entered into through the facilities of a national securities exchange or any national
securities quotation system, provided, that if the settlement of the transaction would result in a
Prohibited Transfer, such Transfer shall nonetheless be a Prohibited Transfer.
(b) The restrictions contained in this Article IV are for the purposes of reducing the risk
that any ownership change of the Corporation Securities (as defined in the Code) may limit the
Corporations ability to utilize its Tax Benefits. In connection therewith, and to provide for
effective policing of these provisions, a Restricted Holder who proposes to Acquire Corporation
Securities shall, prior to the date of the proposed Acquisition, request in writing (a
Request) that the Board of Directors of the Corporation (or a committee thereof that has
been appointed by the Board of Directors) review the proposed Acquisition and authorize or not
authorize the proposed Acquisition in accordance with this Section E.2(b) of Article IV. A Request
shall be mailed or delivered to the Secretary of the Corporation at the Corporations principal
place of business, or telecopied to the Corporations telecopier number at its principal place of
business. Such Request shall be deemed to have been received by the Corporation when actually
received by the Secretary of the Corporation. A Request shall include (i) the name, address and
telephone number of the Restricted Holder, (ii) a description of the Restricted Holders direct and
indirect ownership of Corporation Securities, (iii) a description of the Corporation Securities
that the Restricted Holder proposes to Acquire, (iv) the date on which the proposed Acquisition is
expected to take place (or, if the Acquisition is proposed to be made by a Five Percent Shareholder
in a transaction on a national securities exchange or any national securities quotation system, a
statement to that effect), (v) the name of the proposed transferor of the Corporation Securities
that the Restricted Holder proposes to Acquire (or, if the Acquisition is proposed to be made by a
Five Percent Shareholder in a transaction on a national securities exchange or any national
securities quotation system, a statement to that effect), and (vi) a request that the Board of
Directors (or a committee thereof that has been appointed by the Board of Directors) authorize, if
appropriate, the Acquisition pursuant to this Section E.2(b) of Article IV.
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(c) The Board of Directors may authorize an Acquisition by a Restricted Holder, or otherwise
determine to waive the application of any restrictions contained in this Article IV, if it
determines, in its sole discretion, that, after taking into account the preservation of the Tax
Benefits, such Acquisition or waiver would be in the best interests of the Corporation and its
stockholders and in such cases, the restrictions set forth in Section E.2(a) of this Article IV
shall not apply, notwithstanding the effect of any such authorization or waiver on the Tax
Benefits. Any proposed Acquisition by a Restricted
Holder that is not so authorized by the Board of Directors or subject to such a waiver shall
be deemed a Prohibited Transfer. The Board of Directors may, in its sole discretion, impose any
conditions that it deems reasonable and appropriate in connection with authorizing any such
Acquisition by a Restricted Holder or granting such a waiver. In addition, the Board of Directors
may, in its sole discretion, require such representations from the Restricted Holder or such
opinions of counsel to be rendered by counsel selected by the Board of Directors, in each case as
to such matters as the Board of Directors may determine. Any Restricted Holder who makes a Request
to the Board of Directors shall reimburse the Corporation, on demand, for all costs and expenses
incurred by the Corporation with respect to any proposed Acquisition of Corporation Securities
subject to such Request, whether or not such Request is granted, including, without limitation, the
Corporations costs and expenses incurred in determining whether to authorize the proposed
Acquisition, which costs may include, but are not limited to, any expenses of counsel and/or tax
advisors engaged by the Board of Directors to advise the Board of Directors or deliver an opinion
thereto.
3. Treatment of Excess Securities.
(a) No employee or agent of the Corporation shall record any Prohibited Transfer, and the
purported transferee of a Prohibited Transfer (the Purported Transferee) shall not be
recognized as a stockholder of the Corporation for any purpose whatsoever in respect of the
Corporation Securities which are the subject of the Prohibited Transfer (the Excess
Securities). The Purported Transferee shall not be entitled with respect to such Excess
Securities to any rights of stockholders of the Corporation, including, without limitation, the
right to vote such Excess Securities and to receive dividends or distributions, whether liquidating
or otherwise, in respect thereof. Once the Excess Securities have been acquired in a Transfer that
is not a Prohibited Transfer, such Corporation Securities shall cease to be Excess Securities.
(b) If the Board of Directors determines that a Prohibited Transfer has been recorded by an
agent or employee of the Corporation notwithstanding the prohibition in Section E.3(a) of this
Article IV, such recording and the Prohibited Transfer shall be void ab initio and have no legal
effect and, upon written demand by the Corporation, the Purported Transferee shall transfer or
cause to be transferred any certificate or other evidence of ownership of the Excess Securities
within the Purported Transferees possession or control, together with any dividends or other
distributions that were received by the Purported Transferee from the Corporation with respect to
the Excess Securities (the Prohibited Distributions), to an agent designated by the Board
of Directors (the Agent). In the event of an attempted Prohibited Transfer involving the
purchase or Acquisition of Corporation Securities in violation of this Article 4 by a Restricted
Holder, the Agent shall thereupon sell to a buyer or buyers, which may include the Corporation or
the purported transferor, the Excess Securities transferred to it in one or more arms-length
transactions (including over a national securities exchange or national securities quotation system
on which the Corporation Securities may be traded); provided, however, that the Agent, in its sole
discretion, shall effect such sale or sales in an orderly fashion and shall not be required to
effect any such sale within any specific time frame if, in the Agents discretion, such sale or
sales would disrupt the market for the Corporation Securities, would adversely affect the value of
the Corporation Securities or would be in violation of applicable securities laws. If the
Purported Transferee has resold the Excess Securities before receiving the Corporations demand to
surrender the Excess Securities to the Agent, the Purported Transferee shall be deemed to have sold
the Excess Securities for the Agent, shall be deemed to hold in trust for the Agent, and shall be
required to transfer to the Agent, any Prohibited Distributions and proceeds of such sale, except
to the extent that the Corporation grants written permission to the Purported Transferee to retain
a portion of such sales proceeds not exceeding the amount that the Purported Transferee would have
received from the Agent pursuant to Section E.3(c) of this Article IV if the Agent, rather than the
Purported Transferee, had resold the Excess Securities.
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(c) The Agent shall apply any proceeds of a sale by it of Excess Securities and, if the
Purported Transferee had previously resold the Excess Securities, any amounts received by it from a
Purported Transferee, together with any Prohibited Distributions received by it, as follows: (i)
first, to reimburse itself to the extent necessary to cover its costs and expenses incurred in
accordance with its duties hereunder; (ii) second, to reimburse the Purported Transferee for the
amounts paid by the Purported Transferee for the Excess Securities (or in the case of any
Prohibited Transfer by gift, devise or inheritance or any other Prohibited Transfer without
consideration, the fair market value, calculated on the basis of the closing market price for the
Corporation Securities on the day before the Prohibited Transfer), and (iii) third, the remainder,
if any, to the original transferor, or, if the original transferor cannot be readily identified, to
the Company to the extent of any amounts owing to the Company pursuant to Section E.3(f) below,
with the remainder, if any, to be donated to an entity designated by the Corporations Board of
Directors that is described in Section 501(c) of the Code, contributions to which must be eligible
for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of the Code. The recourse of any
Purported Transferee with respect of any Prohibited Transfer shall be limited to the amount payable
to the Purported Transferee pursuant to clause (ii) of this Section E.3(c) of this Article IV.
Except as may be required by law, in no event shall the proceeds of any sale of Excess Securities
pursuant to this Article IV inure to the benefit of the Corporation or the Agent, except to the
extent used to cover costs and expenses incurred by the Agent in performing its duties hereunder.
(d) In the event of any Transfer which does not involve a transfer of securities of the
Corporation within the meaning of Delaware law (Securities, and individually, a
Security) but which would cause a Five Percent Shareholder to violate a restriction on
Transfers provided for in this Article IV, the application of Section E.3(b) and Section E.3(c)
shall be modified as described in this Section E.3(d). In such case, no such Five Percent
Shareholder shall be required to dispose of any interest that is not a Security, but such Five
Percent Shareholder and/or any Person whose ownership of Securities is attributed to such Five
Percent Shareholder shall be deemed to have disposed of and shall be required to dispose of
sufficient Securities (which Securities shall be disposed of in the inverse order in which they
were acquired) to cause such Five Percent Shareholder, following such disposition, not to be in
violation of this Article IV. Such disposition shall be deemed to occur simultaneously with the
Transfer giving rise to the application of this provision, and such number of Securities that are
deemed to be disposed of shall be considered Excess Securities and shall be disposed of through the
Agent as provided in Section E.3(b) and Section E.3(c), except that the maximum aggregate amount
payable either to such Five Percent Shareholder, or to such other Person that was the record owner
of such Excess Securities, in connection with such sale shall be the fair market value of such
Excess Securities at the time of the purported Transfer. All expenses incurred by the Agent in
disposing of such Excess Stock shall be paid out of any amounts due such Five Percent Shareholder
or such other Person. The purpose of this Section E.3(d) is to extend the restrictions in Section
E.2(a) and Section E.3(a) to situations in which there is a Five Percent Shareholder without a
direct Transfer of Securities, and this Section E.3(d), along with the other provisions of this
Article IV, shall be interpreted to produce the same results, with differences as the context
requires, as a direct Transfer of Corporation Securities.
(e) If the Purported Transferee fails to surrender to the Agent the Excess Securities or the
proceeds of a sale thereof, or any Prohibited Distributions received by it, or to otherwise comply
with Section E.3 of this Article IV, within thirty (30) days from the date on which the Corporation
makes a demand pursuant to Section E.(3)(b) of this Article IV, or any written demand with respect
to a deemed disposition pursuant to Section E.3(d) of this Article IV, then the Corporation may
take such actions as it deems necessary or advisable to enforce the provisions hereof, and/or
enjoin or rescind any violation hereof, including the institution of legal or equitable proceedings
to compel such surrender.
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(f) If any Person shall knowingly violate, or knowingly cause any other Person under control
of such Person (a Controlled Person) to violate this Article IV, then that Person and any
such Controlled Person shall be jointly and severally liable for, and shall pay to the
Corporation, such amount as will, after taking account of all taxes imposed with respect to the
receipt or accrual of such amount and all costs incurred by the Corporation as a result of such
violation, put the Corporation in the same financial position as it would have been in had such
violation not occurred.
4. Amendment of Transfer Restrictions. Notwithstanding the provisions of Article XII
of the Corporations Restated Certificate of Incorporation, the Corporation may only amend or
repeal any of the provisions set forth in this Section E. by the affirmative vote of the holders of
two-thirds of the shares entitled to vote thereon.
5. Legends; Compliance
(a) All certificates reflecting Corporation Securities on or after the Effective Time shall,
until the Restriction Release Date, bear a conspicuous legend in substantially the following form:
THE RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED (THE CERTIFICATE OF INCORPORATION), OF
THE CORPORATION CONTAINS RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE CERTIFICATE OF
INCORPORATION) OF STOCK OF THE CORPORATION (INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS,
RIGHTS AND WARRANTS) WITHOUT THE PRIOR AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE CORPORATION
(THE BOARD OF DIRECTORS) IF SUCH TRANSFER AFFECTS THE PERCENTAGE OF STOCK OF THE CORPORATION
(WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE)
AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER) THAT IS TREATED AS OWNED BY A FIVE PERCENT
SHAREHOLDER UNDER THE CODE AND SUCH REGULATIONS. IF THE TRANSFER RESTRICTIONS ARE VIOLATED, THEN
THE TRANSFER WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE OF THE STOCK WILL BE REQUIRED TO
TRANSFER EXCESS SECURITIES (AS DEFINED IN THE CERTIFICATE OF INCORPORATION) TO THE CORPORATIONS
AGENT. IN THE EVENT OF A TRANSFER WHICH DOES NOT INVOLVE SECURITIES OF THE CORPORATION WITHIN THE
MEANING OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE (SECURITIES) BUT WHICH WOULD
VIOLATE THE TRANSFER RESTRICTIONS, THE PURPORTED TRANSFEREE (OR THE RECORD OWNER) OF THE SECURITIES
WILL BE REQUIRED TO TRANSFER SUFFICIENT SECURITIES PURSUANT TO THE TERMS PROVIDED FOR IN THE
CORPORATIONS CERTIFICATE OF INCORPORATION TO CAUSE THE FIVE PERCENT STOCKHOLDER TO NO LONGER BE IN
VIOLATION OF THE TRANSFER RESTRICTIONS. THE CORPORATION WILL FURNISH WITHOUT CHARGE TO ANY
PROPERLY INTERESTED PERSON A COPY OF THE CERTIFICATE OF INCORPORATION, CONTAINING THE
ABOVE-REFERENCED TRANSFER RESTRICTIONS, UPON WRITTEN REQUEST TO THE CORPORATION AT ITS PRINCIPAL
PLACE OF BUSINESS.
The Board of Directors may also require that any certificates issued by the Corporation
evidencing ownership of shares of Stock that are subject to conditions imposed by the Board of
Directors under Section E.2(b) of this Article IV also bear a conspicuous legend referencing the
applicable restrictions.
(b) The Corporation shall have the power to make appropriate notations upon its stock transfer
records and to instruct any transfer agent, registrar, securities intermediary or depository with
respect to the requirements of this Article IV for any uncertificated Corporation Securities or
Corporation Securities held in an indirect holding system. At the request of the Corporation, or
as a condition to the registration of the Transfer of any Stock, any Person who is a beneficial,
legal or record holder of Stock,
and any proposed transferee of such Stock and any Person controlling, controlled by or under
common control with the proposed transferee of such Stock, shall provide such information as the
Corporation may request from time to time in order to determine compliance with this Article IV or
the status of the Tax Benefits of the Corporation.
8
(c) Nothing contained in this Article IV shall limit the authority of the Board of Directors
of the Corporation to take such other action to the extent permitted by law as it deems necessary
or advisable to preserve the Corporations Tax Benefits. The Board of Directors of the Corporation
shall have the power to determine all matters necessary for determining compliance with this
Article IV, including, without limitation, determining (i) the identification of Five Percent
Shareholders and Restricted Holders, (ii) whether a Transfer or proposed Transfer is a Prohibited
Transfer, (iii) the Percentage Stock Ownership in the Corporation of any Five Percent Shareholders
and Restricted Holders, (iv) whether an instrument or right constitutes a Corporation Security, (v)
the amount (or fair market value) due to a Purported Transferee, (vi) the interpretation of the
provisions of this Article IV, and (vii) any other matters which the Board of Directors deems
relevant. In addition, the Board of Directors may, to the extent permitted by law, from time to
time establish, modify, amend or rescind Bylaws, regulations and procedures of the Corporation not
inconsistent with the express provisions of this Article IV for purposes of determining whether any
Transfer of Stock would jeopardize the Corporations ability to preserve or use the Tax Benefits,
or for the orderly application, administration and implementation of the provisions of this Article
IV. In the case of an ambiguity in the application of any of the provisions of this Article IV,
including any definition used herein, the Board of Directors shall have the power to determine the
application of such provisions with respect to any situation based on its reasonable belief,
understanding or knowledge of the circumstances. In the event that this Article IV requires an
action by the Board of Directors but fails to provide specific guidance with respect to such
action, the Board of Directors shall have the power to determine the action to be taken so long as
such action is not contrary to the provisions of this Article IV. All actions, calculations,
interpretations and determinations that are done or made by the Board of Directors in good faith
pursuant to this Article IV shall be final, conclusive and binding on the Corporation, the Agent,
and all other parties to a Transfer; provided, however, that the Board of Directors may delegate
all or any portion of its duties and powers under this Article IV to a committee of the Board of
Directors as it deems advisable or necessary. All references in this Article IV to the Code and
the regulations promulgated thereunder shall be deemed to include any successor provision.
(d) To the fullest extent permitted by law, the Corporation and the members of the Board of
Directors shall be fully protected in relying in good faith upon the information, opinions, reports
or statements of the chief executive officer, the chief financial officer or the chief accounting
officer of the Corporation or of the Corporations legal counsel, independent auditors, transfer
agent, investment bankers or other employees and agents in making the determinations and findings
contemplated by this Article IV, and the members of the Board of Directors shall not be responsible
for any good faith errors made in connection therewith.
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(e) Nothing contained in this Article IV shall be construed to give any Person other than the
Corporation or the Agent any legal or equitable right, remedy or claim under this Article IV. This
Article IV shall be for the sole and exclusive benefit of the Corporation and the Agent.
(f) With regard to any power, restriction, remedy or right provided herein or otherwise
available to the Corporation or the Agent provided under this Article IV, (i) no waiver will be
effective unless expressly contained in writing signed by the waiving party; and (ii) no waiver
alteration, modification or impairment will be implied by reason of any previous waiver, extension
of time, delay or omission in exercise, or other indulgence.
(g) If any provision of this Article IV or the application of any such provision to any Person
or under any circumstance shall be held invalid, illegal or unenforceable in any respect by a court
of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any
other provision of this Article IV.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Certificate of Amendment to the Corporations Restated Certificate of
Incorporation has been executed by a duly authorized officer of the corporation on this the 4th day
of May 2010.
Heska Corporation |
||||
By: | /s/ Jason Napolitano | |||
Name: | Jason Napolitano | |||
Title: | Executive Vice President, CFO and Secretary |
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