ex10-2.htm


Exhibit 10.2






HESKA CORPORATION


1997 EMPLOYEE STOCK PURCHASE PLAN


(AS AMENDED AND RESTATED, EFFECTIVE APRIL 30, 2013)


  







  




  





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TABLE OF CONTENTS










	
SECTION 1.

	  	
PURPOSE OF THE PLAN.

	
5


	
SECTION 2.

	  	
ADMINISTRATION OF THE PLAN.

	
5


	  	
(a)

	
Committee Composition

	
5


	  	
(b)

	
Committee Responsibilities

	
5


	
SECTION 3.

	  	
ENROLLMENT AND PARTICIPATION.

	
5


	  	
(a)

	
Offering Periods

	
5


	  	
(b)

	
Accumulation Periods

	
5


	  	
(c)

	
Enrollment

	
5


	  	
(d)

	
Duration of Participation

	
6


	  	
(e)

	
Applicable Offering Period

	
6


	
SECTION 4.

	  	
EMPLOYEE PAYROLL CONTRIBUTIONS.

	
7


	  	
(a)

	
Frequency of Payroll Deductions

	
7


	  	
(b)

	
Amount of Payroll Deductions

	
7


	  	
(c)

	
Changing Withholding Rate

	
7


	  	
(d)

	
Discontinuing Payroll Deductions

	
7


	  	
(e)

	
Limit on Number of Elections

	
7


	
SECTION 5.

	  	
WITHDRAWAL FROM THE PLAN.

	
7


	  	
(a)

	
Withdrawal

	
7


	  	
(b)

	
Failure to Participate

	
8


	  	
(c)

	
Re-Enrollment After Withdrawal

	
8


	
SECTION 6.

	  	
CHANGE IN EMPLOYMENT STATUS.

	
8


	  	
(a)

	
Termination of Employment

	
8


	  	
(b)

	
Leave of Absence

	
8


	  	
(c)

	
Death

	
8


	
SECTION 7.

	  	
PLAN ACCOUNTS AND PURCHASE OF SHARES.

	
8


	  	
(a)

	
Contribution Accounts and Purchase Accounts

	
8


	  	
(b)

	
Immediate Notification Share Purchase

	
8


	  	
(c)

	
Purchase Price at the Close of an Accumulation Period

	
9


	  	
(d)

	
Number of Shares Purchased at the Close of an Accumulation Period

	
9


	  	
(e)

	
Available Shares Insufficient

	
9












 




  





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(f)

	
Issuance of Stock

	
10


	  	
(g)

	
Contribution Account Unused Cash Balances

	
10


	
SECTION 8.

	  	
LIMITATIONS ON STOCK OWNERSHIP.

	
10


	  	
(a)

	
Five Percent Limit

	
10


	  	
(b)

	
$25,000 Limit

	
10


	
SECTION 9.

	  	
RIGHTS NOT TRANSFERABLE.

	
11


	
SECTION 10.

	  	
NO RIGHTS AS AN EMPLOYEE.

	
11


	
SECTION 11.

	  	
NO RIGHTS AS A STOCKHOLDER.

	
11


	
SECTION 12.

	  	
STOCK OFFERED UNDER THE PLAN.

	
11


	  	
(a)

	
Authorized Shares

	
11


	  	
(b)

	
Anti-Dilution Adjustments

	
11


	  	
(c)

	
Reorganizations

	
11


	
SECTION 13.

	  	
AMENDMENT OR DISCONTINUANCE.

	
12


	
SECTION 14.

	  	
DEFINITIONS.

	
12


	  	
(a)

	
Accumulation Period

	
12


	  	
(b)

	
Board

	
12


	  	
(c)

	
Change in Control

	
12


	  	
(d)

	
Code

	
12


	  	
(e)

	
Committee

	
12


	  	
(f)

	
Company

	
12


	  	
(g)

	
Compensation

	
12


	  	
(h)

	
Contribution Account

	
13


	  	
(i)

	
Eligible Employee

	
13


	  	
(j)

	
Exchange Act

	
13


	  	
(k)

	
Fair Market Value

	
13


	  	
(l)

	
Immediate Price

	
13


	  	
(m)

	
Immediate Purchase Notification

	
13


	  	
(n)

	
Lookback Price

	
13


	  	
(o)

	
New Offering Date

	
14


	  	
(p)

	
Notification Offering Period

	
14


	  	
(q)

	
Notification Price

	
14


	  	
(r)

	
Offering Period

	
14


	  	
(s)

	
Participant

	
14


	  	
(t)

	
Participating Company

	
14


	  	
(u)

	
Plan

	
14










 




 




  





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(v)

	
Purchase Account

	
14


	  	
(w)

	
Purchase Price

	
14


	  	
(x)

	
Remaining Shares

	
14


	  	
(y)

	
Stock

	
14


	  	
(z)

	
Subsidiary

	
14


	
SECTION 15.

	  	
EXECUTION.

	
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HESKA CORPORATION


1997 EMPLOYEE STOCK PURCHASE PLAN


AS AMENDED AND RESTATED EFFECTIVE APRIL 30, 2013




 


SECTION 1.                         PURPOSE OF THE PLAN.


 


The Plan was adopted by the Board on April 23, 1997.  The purpose of the Plan is to provide Eligible Employees with an opportunity to increase their proprietary interest in the success of the Company by purchasing Stock from the Company on favorable terms.  The Plan is intended to qualify under section 423 of the Code.







The Plan was amended and restated on May 16, 2002, February 6, 2004, February 24, 2005, June 17, 2008 and May 4, 2010.  The Plan is now amended and restated, effective April 30, 2013.


 


SECTION 2.                         ADMINISTRATION OF THE PLAN.


 


(a)         Committee Composition.  The Plan shall be administered by the Committee.  The Committee shall consist exclusively of one or more directors of the Company, who shall be appointed by the Board.


 


(b)         Committee Responsibilities.  The Committee shall interpret the Plan and make all other policy decisions relating to the operation of the Plan.  The Committee may adopt such rules, guidelines and forms as it deems appropriate to implement the Plan.  The Committee’s determinations under the Plan shall be final and binding on all persons.


 


SECTION 3.                         ENROLLMENT AND PARTICIPATION.


 


(a)         Offering Periods.  Any and all then outstanding Offering Periods shall end on June 30, 2013.  While the Plan is in effect thereafter, four overlapping Offering Periods shall commence in each calendar year.  The Offering Periods shall consist of the 27-month periods commencing on each January 1, April 1, July 1 and October 1.


 


(b)         Accumulation Periods.  The then outstanding Accumulation Period shall end on June 30, 2013.  While the Plan is in effect thereafter, four Accumulation Periods shall commence in each calendar year.  The Accumulation Periods shall consist of the three-month periods commencing on each January 1, April 1, July 1 and October 1.


 


(c)         Enrollment.  Any individual who, at the end of the day immediately preceding the first day of an Offering Period, qualifies as an Eligible Employee may elect to become a Participant in the Plan for such Offering Period by executing the prescribed form, which shall be filed with the Company at the prescribed location prior to the commencement of such Offering Period; provided, however, that no Eligible Employee who does not comply with the five percent limit outlined in Section 8(a) at the commencement of such Offering Period shall become a Participant in the Plan under this Subsection (c) and, furthermore, that no Eligible Employee shall be enrolled in an Offering Period beginning prior to the New Offering Date applicable to such Eligible Employee.


 




  





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(d)         Duration of Participation.  Once enrolled in the Plan, a Participant shall continue to participate in the Plan until he or she ceases to be an Eligible Employee, withdraws from the Plan under Section 5(a) or is withdrawn from the Plan under Section 5(b).  A Participant who withdrew from the Plan under Section 5(a) or was withdrawn from the Plan under Section 5(b) may again become a Participant, if he or she then is an Eligible Employee, by following the procedure described in Subsection (c) above.


 


(e)         Applicable Offering Period.  Only one Offering Period may apply to a Participant at one time.  The applicable Offering Period for a given Participant shall be determined as follows:


 


(i)       Once a Participant is enrolled in the Plan for an Offering Period, such Offering Period shall continue to apply to him or her until the earliest of (A) the end of such Offering Period, (B) the end of his or her participation under Subsection (d) above, (C) enrollment by the Participant in a subsequent Offering Period following a written request on the prescribed form to enroll in an immediately subsequent Offering Period filed with the Company at the prescribed location prior to the commencement of such subsequent Offering Period, which shall only be effective if (1) such Participant has designated on the prescribed form filed with the Company at the prescribed location prior to the commencement of such subsequent Offering Period that he or she elects to have withheld at least 1% of Compensation in the first month of such subsequent Offering Period, (2) such subsequent Offering Period begins on or after the New Offering Date applicable to such Participant and (3) such Participant complies with the five percent limit outlined in Section 8(a), or (D) automatic enrollment in a subsequent Offering Period under Paragraph (ii) below.


 


(ii)       In the event that the Fair Market Value of Stock at the commencement of the Offering Period in which the Participant is enrolled is higher than at the commencement of any subsequent Offering Period, the Participant shall automatically be enrolled in such subsequent Offering Period if (A) the Participant has designated on the prescribed form filed with the Company at the prescribed location prior to the commencement of such subsequent Offering Period that he or she elects to have withheld at least 1% of Compensation in the first month of such subsequent Offering Period, (B) such subsequent Offering Period begins on or after the New Offering Date applicable to such Participant and (C) such Participant complies with the five percent limit outlined in Section 8(a), unless the Participant has filed a written request on the prescribed form not to be enrolled in such subsequent Offering Period with the Company at the prescribed location prior to the commencement of such subsequent Offering Period.


 


(iii)       When a Participant reaches the end of an Offering Period but his or her participation is to continue as the Participant has not discontinued payroll deductions under Section 4(d) at the end of such Offering Period, then such Participant shall be enrolled automatically for the Offering Period that commences immediately thereafter unless such Participant does not comply with the five percent limit outlined in Section 8(a).


 




  





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SECTION 4.                         EMPLOYEE PAYROLL CONTRIBUTIONS.


 


(a)         Frequency of Payroll Deductions.  A Participant may purchase shares of Stock under the Plan by means of payroll deductions.  Payroll deductions, as designated by the Participant pursuant to Subsection (b) below, shall occur on each payday during participation in the Plan.


 


(b)         Amount of Payroll Deductions.  An Eligible Employee shall designate on the prescribed form the portion of his or her Compensation that he or she elects to have withheld for the purchase of Stock.  Such portion shall be a whole percentage of the Eligible Employee’s Compensation, but not less than 1% nor more than 10%.  Any other provision of the Plan notwithstanding, no Participant shall have more than $25,000 from payroll deductions used to purchase Stock under the Plan in the same calendar year, which for the avoidance of doubt shall exclude any deposit made pursuant to Section 7(b).  If a Participant is precluded by this Subsection (b) from making additional purchases of Stock under the Plan in a given calendar year, then his or her payroll deductions shall be discontinued automatically and shall resume automatically at the beginning of the first Accumulation Period ending in the next calendar year or, if later, the first Accumulation Period during which the Participant is enrolled in an Offering Period other than a Notification Offering Period attributable to the Participant.


 


(c)         Changing Withholding Rate.  If a Participant wishes to change the rate of payroll withholding, he or she may do so by filing the prescribed form with the Company at the prescribed location at any time.  The new withholding rate shall be effective as soon as reasonably practicable after such form has been received by the Company.  The new withholding rate shall be a whole percentage of the Eligible Employee’s Compensation, but not less than 1% nor more than 10%.


 


(d)         Discontinuing Payroll Deductions.  If a Participant wishes to discontinue employee contributions entirely, he or she may do so by filing the prescribed form with the Company at the prescribed location at any time.  Payroll withholding shall cease as soon as reasonably practicable after such form has been received by the Company.  (In addition, employee contributions may be discontinued automatically pursuant to Section 4(b), 7(b) or 8(b).)  A Participant who has discontinued employee contributions may resume such contributions by filing the prescribed form with the Company at the prescribed location.  Payroll withholding shall resume as soon as reasonably practicable after such form has been received by the Company.


 


(e)         Limit on Number of Elections.  No Participant shall make more than two elections under Subsection (c) or (d) above, combined, during any Accumulation Period.


 


SECTION 5.                         WITHDRAWAL FROM THE PLAN.


 


(a)         Withdrawal.  A Participant may elect to withdraw from the Plan by filing the prescribed form with the Company at the prescribed location at any time before the last day of an Accumulation Period.  As soon as reasonably practicable thereafter, payroll deductions shall cease and the entire amount credited to the Participant’s Contribution Account and Purchase Account shall be refunded to him or her in cash, without interest.  No partial withdrawals shall be permitted.


 




  





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(b)         Failure to Participate.  A participant who did not purchase Stock under the Plan during an Accumulation Period due to a decision to discontinue employee contributions under Section 4(d) shall be deemed as failing to participate in the Plan and shall be withdrawn from the Plan automatically.  As soon as reasonably practicable thereafter, the entire amount credited to the Participant’s Contribution Account shall be refunded to him or her in cash, without interest.


 


(c)         Re-Enrollment After Withdrawal.  A former Participant who has withdrawn or was withdrawn from the Plan shall not be a Participant until he or she re-enrolls in the Plan under Section 3(c).  Re-enrollment may be effective only at the commencement of an Offering Period.


 


SECTION 6.                         CHANGE IN EMPLOYMENT STATUS.


 


(a)         Termination of Employment.  Termination of employment as an Eligible Employee for any reason, including death, shall be treated as an automatic withdrawal from the Plan under Section 5(a).  (A transfer from one Participating Company to another shall not be treated as a termination of employment.)


 


(b)         Leave of Absence.  For purposes of the Plan, employment shall not be deemed to terminate when the Participant goes on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing and if continued crediting of service for such purpose is expressly required by the terms of such leave or by applicable law (as determined by the Company).  Employment, however, shall be deemed to terminate 90 days after the Participant goes on a leave, unless a contract or statute protects his or her right to return to work.  Employment shall be deemed to terminate in any event when the approved leave ends, unless the Participant immediately returns to work.


 


(c)         Death.  In the event of the Participant’s death, unless otherwise prohibited by law, the entire amount credited to his or her Contribution Account and his or her Purchase Account shall be paid to a beneficiary designated by him or her for this purpose on the prescribed form or, if none, to the Participant’s estate.  Such form shall be valid only if it was filed with the Company at the prescribed location before the Participant’s death and is not otherwise prohibited by law.


 


SECTION 7.                         PLAN ACCOUNTS AND PURCHASE OF SHARES.


 


(a)         Contribution Accounts and Purchase Accounts.  The Company shall maintain a Contribution Account on its books in the name of each Participant.  Whenever an amount is deducted from the Participant’s Compensation under the Plan, such amount shall be credited to the Participant’s Contribution Account.  The Company shall also maintain a Purchase Account on its books in the name of each Participant.  Whenever any Participant makes a deposit pursuant to an Immediate Purchase Notification under Subsection (b) below, the amount of such deposit shall be credited to the Participant’s Purchase Account.  Amounts credited to Contribution Accounts and Purchase Accounts shall not be trust funds and may be commingled with the Company’s general assets and applied to general corporate purposes.  No interest shall be credited to Contribution Accounts and Purchase Accounts.


 


(b)         Immediate Notification Share Purchase.  A Participant may elect to purchase Stock at the commencement of an Offering Period, or effective at 5 p.m. on any day other than the last day of an Accumulation Period, by filing the prescribed form with the Company prior to such 




  





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purchase - an Immediate Purchase Notification for such Participant. A Participant may make a deposit at the time of an Immediate Purchase Notification. The Offering Period in which an Immediate Purchase Notification is to be effective is a Notification Offering Period for such Participant. At the time the Immediate Purchase Notification is to be effective, the combined amount in the Participant’s Contribution Account and the Participant’s Purchase Account is divided by the Immediate Price at that time and the number of shares that results shall be purchased from the Company with the funds in the Participant’s Contribution Account and the Participant’s Purchase Account. The foregoing notwithstanding, no Participant shall purchase more than Remaining Shares nor more than the amounts of Stock set forth in Sections 8(b) and 12(a) at this time. Any remaining funds in the Participant’s Contribution Account shall then be deposited into the Participant’s Purchase Account. During the Notification Offering Period, at 5 p.m. on January 31 of each year following the year of the Immediate Purchase Notification, any amount in the Participant’s Purchase Account shall be divided by the Notification Price and the number of shares that results shall be purchased from the Company with the funds in the Participant’s Purchase Account. The foregoing notwithstanding, no Participant shall purchase more than Remaining Shares nor more than the amounts of Stock set forth in Sections 8(b) and 12(a) on any such January 31. Any fractional share, as calculated under this Subsection (b), shall be rounded down to the next lower whole share. As soon as reasonably practicable following an Immediate Purchase Notification, payroll deductions shall be discontinued automatically and shall automatically resume at the beginning of the next Offering Period in which the Participant is enrolled. Any amount remaining in the Participant’s Purchase Account at the end of the Notification Offering Period shall be refunded to the Participant in cash, without interest, at that time.




 


(c)         Purchase Price at the close of an Accumulation Period.  The Purchase Price for each share of Stock purchased at the close of an Accumulation Period shall be the greater of: (i) the Lookback Price or (ii) 65% of the Fair Market Value of a share of Stock at the close of such Accumulation Period.


 


(d)         Number of Shares Purchased at the close of an Accumulation Period.  As of the last day of each Accumulation Period, each Participant shall be deemed to have elected to purchase the number of shares of Stock calculated in accordance with this Subsection (d), unless the Participant has previously elected to withdraw from the Plan in accordance with Section 5(a).  The amount then in the Participant’s Contribution Account shall be divided by the Purchase Price, and the number of shares that results shall be purchased from the Company with the funds in the Participant’s Plan Account.  The foregoing notwithstanding, no Participant shall purchase more than 200 shares of Stock with respect to any Accumulation Period nor more than the amounts of Stock set forth in Sections 8(b) and 12(a).  Any fractional share, as calculated under this Subsection (c), shall be rounded down to the next lower whole share.


 


(e)         Available Shares Insufficient.  In the event that the aggregate number of shares that all Participants elect to purchase at any time, such as the close of an Accumulation Period, exceeds the maximum number of shares remaining available for issuance under Section 12(a), then the number of shares to which each Participant is entitled shall be determined by multiplying the number of shares available for issuance by a fraction, the numerator of which is the number of shares that such Participant has elected to purchase and the denominator of which is the number of shares that all Participants have elected to purchase.


 




  





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(f)         Issuance of Stock.  The Committee may determine that shares of Stock purchased by a Participant under the Plan shall be held for each Participant’s benefit by a broker designated by the Committee, unless the Participant has elected that certificates be issued to him or her.  Such shares, whether to be held for a given Participant’s benefit by a broker or issued as certificates for a given Participant, shall be issued as soon as reasonably administratively practicable after shares of Stock are purchased.  Shares may be registered in the name of the Participant or jointly in the name of the Participant and his or her spouse as joint tenants with right of survivorship or as community property.


 


(g)         Contribution Account Unused Cash Balances.  An amount remaining in the Participant’s Contribution Account that represents the Purchase Price for any fractional share shall be carried over in the Participant’s Contribution Account to the next Accumulation Period.  Any amount remaining in the Participant’s Contribution Account that represents the Purchase Price for whole shares that could not be purchased by reason of Subsection (d) above shall be refunded to the Participant in cash, without interest.


 


SECTION 8.                         LIMITATIONS ON STOCK OWNERSHIP.


 


(a)         Five Percent Limit.  Any other provision of the Plan notwithstanding, no Participant shall be granted a right to purchase Stock under the Plan if such Participant, immediately after his or her election to purchase such Stock, would own stock possessing 5% or more of the total combined voting power or value of all classes of stock of the Company or any parent or Subsidiary of the Company.  For purposes of this Subsection (a), the following rules shall apply:


 


(i)       Ownership of stock shall be determined after applying the attribution rules of section 424(d) of the Code;


 


(ii)       Each Participant shall be deemed to own any stock that he or she has a right or option to purchase under this or any other plan; and


 


(iii)       Each Participant shall be deemed to have the right to purchase 1,800 shares of Stock under this Plan with respect to each Offering Period.


 


(b)         $25,000 Limit.  Any other provision of the Plan notwithstanding, no Participant shall purchase Stock with a Fair Market Value (determined at the time such purchase right option is granted) in excess of $25,000 during any calendar year under this Plan and all other employee stock purchase plans of the Company or any parent or Subsidiary of the Company.  For purposes of this Subsection (b), employee stock purchase plans not described in section 423 of the Code shall be disregarded.  If a Participant is precluded by this Subsection (b) from purchasing additional Stock under the Plan, then his or her employee contributions shall automatically be discontinued and shall resume automatically at the beginning of the first Accumulation Period ending in the next calendar year or, if later, the first Accumulation Period during which the Participant is enrolled in an Offering Period other than a Notification Offering Period attributable to the Participant.  







 




  





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SECTION 9.                                 RIGHTS NOT TRANSFERABLE.







The rights of any Participant under the Plan, or any Participant’s interest in any Stock or moneys to which he or she may be entitled under the Plan, shall not be transferable by voluntary or involuntary assignment or by operation of law, or in any other manner other than by beneficiary designation or the laws of descent and distribution.  If a Participant in any manner attempts to transfer, assign or otherwise encumber his or her rights or interest under the Plan, other than by beneficiary designation or the laws of descent and distribution, then such act shall be treated as an election by the Participant to withdraw from the Plan under Section 5(a).


 


SECTION 10.                                NO RIGHTS AS AN EMPLOYEE.







Nothing in the Plan or in any right granted under the Plan shall confer upon the Participant any right to continue in the employ of a Participating Company for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Participating Companies or of the Participant, which rights are hereby expressly reserved by each, to terminate his or her employment at any time and for any reason, with or without cause.


 


SECTION 11.                                NO RIGHTS AS A STOCKHOLDER.







A Participant shall have no rights as a stockholder with respect to any shares of Stock that he or she may have a right to purchase under the Plan until such shares have been purchased under the Plan.


 


SECTION 12.                                STOCK OFFERED UNDER THE PLAN.


 


(a)         Authorized Shares.  The aggregate number of shares of Stock available for purchase under the Plan shall be 375,000, subject to adjustment pursuant to this Section 12.


 


(b)         Anti-Dilution Adjustments.  The aggregate number of shares of Stock offered under the Plan, the 200 share limit described in Section 7(d), the 1,800 share right to purchase calculation described in Section 8(a)(iii), the 1,800 share starting point and any pre-dilution purchases described in Section 14(x) and the price of shares that any Participant has elected to purchase shall be adjusted proportionately as directed by the Committee for any increase or decrease in the number of outstanding shares of Stock resulting from a subdivision or consolidation of shares or the payment of a stock dividend, any other increase or decrease in such shares effected without receipt or payment of consideration by the Company, the distribution of the shares of a Subsidiary to the Company’s stockholders or a similar event.


 


(c)         Reorganizations.  Any other provision of the Plan notwithstanding, immediately prior to the effective time of a Change in Control, the Offering Period and Accumulation Period then in progress shall terminate, shares shall be purchased pursuant to Section 7 and any remaining unused balance in a given Participant’s Contribution Account and Purchase Account shall be returned to such Participant.  In the event of a merger or consolidation to which the Company is a constituent corporation and which does not constitute a Change in Control, the Plan shall continue unless the plan of merger or consolidation provides otherwise.  The Plan shall in no 


 




  





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event be construed to restrict in any way the Company’s right to undertake a dissolution, liquidation, merger, consolidation or other reorganization.


 


SECTION 13.                                AMENDMENT OR DISCONTINUANCE.







The Board shall have the right to amend, suspend or terminate the Plan at any time and without notice.  Except as provided in Section 12, any increase in the aggregate number of shares of Stock to be issued under the Plan shall be subject to approval by a vote of the stockholders of the Company.  In addition, any other amendment of the Plan shall be subject to approval by a vote of the stockholders of the Company to the extent required by an applicable law or regulation.


 


SECTION 14.                                DEFINITIONS.


 


(a)         "Accumulation Period" means a three-month period during which contributions may be made toward the purchase of Stock under the Plan, as determined pursuant to Section 3(b).


 


(b)         "Board" means the Board of Directors of the Company, as constituted from time to time.


 


(c)         "Change in Control" means:


 


(i)       The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if more than 50% of the combined voting power of the continuing or surviving entity’s securities outstanding immediately after such merger, consolidation or other reorganization is owned by persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization; or


 


(ii)       The sale, transfer or other disposition of all or substantially all of the Company’s assets or the complete liquidation or dissolution of the Company.







A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction.


 


(d)         "Code" means the Internal Revenue Code of 1986, as amended.


 


(e)         "Committee" means a committee of the Board, as described in Section 2.


 


(f)         "Company" means Heska Corporation, a Delaware corporation.


 


(g)         "Compensation" means (i) the total compensation paid in cash to a Participant by a Participating Company, including salaries, wages, bonuses, incentive compensation, commissions and overtime pay, plus (ii) any pre-tax contributions made by the Participant under Section 401(k) or 125 of the Code.  Compensation shall exclude moving or relocation allowances, car allowances, imputed income attributable to cars or life insurance, fringe benefits, 


 




  





12











  






contributions to employee benefit plans and similar items.  The Committee shall determine whether a particular item is included in Compensation.


 


(h)         "Contribution Account" means the account established for each Participant pursuant to Section 7(a).


 


(i)         "Eligible Employee" means any employee of a Participating Company whose customary employment is for more than five months per calendar year and for more than 20 hours per week.  The foregoing notwithstanding, an individual shall not be considered an Eligible Employee if his or her participation in the Plan is prohibited by the law of any country which has jurisdiction over him or her or if he or she is subject to a collective bargaining agreement that does not provide for participation in the Plan.


 


(j)         "Exchange Act" means the Securities Exchange Act of 1934, as amended.


 


(k)         "Fair Market Value" means the market price of Stock, determined by the Committee as follows:


 


(i)       If Stock is normally listed on the Nasdaq Stock Market, then the Fair Market Value shall be equal to the last transaction price reported by the Nasdaq Stock Market;


 


(ii)       If provision (i) above is not applicable and Stock is normally listed on a stock exchange, then the Fair Market Value shall be equal to the last transaction price reported by such stock exchange;


 


(iii)       If provisions (i) and (ii) above are not applicable and Stock was traded over-the-counter on the date in question, then the Fair Market Value shall be equal to the last transaction price reported by the principal automated inter-dealer quotation system on which Stock is quoted or, if the Stock is not quoted on any such system, by the "Pink Sheets" published by the National Quotation Bureau, Inc.; and


 


(iv)       If none of the foregoing provisions is applicable or may be implemented, then the Fair Market Value shall be determined by the Committee in good faith on such basis as it deems appropriate.







Whenever possible, the determination of Fair Market Value by the Committee shall be based on the prices as reported directly to the Company by the Nasdaq Stock Market or a comparable exchange or as reported in The Wall Street Journal.  Such determination shall be conclusive and binding on all persons.


 


(l)         "Immediate Price" means 95% of the Fair Market Value of a share of Stock.


 


(m)         "Immediate Purchase Notification" means the election and related process set forth in Section 7(b).


 


(n)         "Lookback Price" means the lesser of:


 


(i)       85% of the Fair Market Value of a share of Stock; or


 




  





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(ii)       95% of the Fair Market Value of a share of Stock at the commencement of the applicable Offering Period (as determined under Section 3(e)).


 


(o)         "New Offering Date" means, for a given individual, the later of (i) July 1, 2013 and (ii) the day following the last day of the most recent Notification Offering Period in which such individual filed an Immediate Purchase Notification, if applicable.  For example, if an individual is enrolled in an Offering Period beginning on January 1, 2016 and files an Immediate Purchase Notification on January 15, 2016, then this Offering Period is a Notification Offering Period for such individual, including if such individual withdraws from the Plan or terminates employment with the Company, and the related New Offering Date is April 1, 2018.


 


(p)         "Notification Offering Period" means, for a given individual, an Offering Period in which an Immediate Purchase Notification is to be effective.


 


(q)         "Notification Price" means the Immediate Price at the commencement of the applicable Offering Period if a given Participant gave an Immediate Purchase Notification to purchase Stock at the commencement of such Offering Period.  Otherwise, the Immediate Price at the time of purchase.


 


(r)         "Offering Period" means the 27-month period with respect to which the right to purchase Stock may be granted under the Plan and during which contributions may be made toward the purchase of Stock under the Plan, as determined pursuant to Section 3(a).


 


(s)         "Participant" means an Eligible Employee who elects to participate in the Plan, as provided in Section 3(c).


 


(t)         "Participating Company" means (i) the Company and (ii) each present or future Subsidiary designated by the Committee as a Participating Company.


 


(u)         "Plan" means this Heska Corporation 1997 Employee Stock Purchase Plan, as it may be amended from time to time.


 


(v)         "Purchase Account" means the account established for each Participant pursuant to Section 7(a).


 


(w)         "Purchase Price" means the price at which Participants may purchase Stock at the close of an Accumulation Period under the Plan, as determined pursuant to Section 7(c).


 


(x)         "Remaining Shares" means the number of shares of Stock equal to 1,800 less (i) cumulative shares of Stock purchased pursuant to Section 7(d) in a given Notification Offering Period prior to an Immediate Purchase Notification less (ii) cumulative shares of Stock purchased pursuant to Section 7(b) in a given Notification Offering Period following an Immediate Purchase Notification.


 


(y)         "Stock" means the Common Stock of the Company.


 


(z)         "Subsidiary" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last 






  





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corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.


 


SECTION 15.                                EXECUTION.


 


To record the most recent amendment of the Plan by the Board or its Committee on April 30, 2013, the Company has caused its authorized officer to execute the same.




 


 


 


 


 


 






	 	
HESKA CORPORATION


 


 

	 
	
  

	
By: 

	/s/ Robert B. Grieve	 
	 	 	Robert B. Grieve	 
	 	 	
Chairman and Chief Executive Officer

	 
	 	 	 	 









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