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EXHIBIT 9.1
VOTING AGREEMENT
This Agreement is made as of the 12th day of April, 1996 by
and among HESKA CORPORATION, a California corporation (the "Company"),
CIBA-GEIGY LIMITED, a Swiss corporation ("Ciba- Geigy"), VOLENDAM INVESTERINGEN
N.V., a Netherlands Antilles corporation ("Volendam"), CHARTER VENTURES, a
California limited partnership ("Charter I"), and CHARTER VENTURES II, L.P., a
California limited partnership ("Charter II", and collectively with Ciba-Geigy,
Volendam and Charter I, the "Shareholders").
WHEREAS, in order to induce Ciba-Geigy and the Company to
enter into that certain Series F Preferred Stock Purchase Agreement dated as of
the date hereof (the "Series F Agreement"), and to induce Charter I, Charter II
and Volendam to consent to the transactions contemplated by the Series F
Agreement, the parties hereto have indicated their willingness to enter into
this Agreement upon the terms and conditions set forth below; and
WHEREAS, the parties hereto enter this Agreement for the
additional purpose of confirming the arrangements for election of directors of
the Company;
IT IS HEREBY AGREED AS FOLLOWS:
1. Agreement to Vote. During the term of this Agreement, and
notwithstanding the provisions of Article Four, Sections 6(b), 6(c) and 6(d) of
the Amended and Restated Articles of Incorporation of the Company (the
"Restated Articles"), the Shareholders shall vote or act with respect to all
shares of the Company's voting securities now or hereafter owned by them,
whether beneficially or otherwise (the "Shares"), so as to elect the directors
of the Company as follows:
(a) One designee of Charter I and Charter II
(the "Charter Designee") who shall be reasonably acceptable to Volendam and
Ciba-Geigy. The Charter Designee shall initially be X. Xxxx Xxxxx. Any vacancy
occurring because of the death, resignation, or removal of the Charter Designee
shall be filled according to this paragraph 1(a).
(b) One designee of Volendam (the "Volendam
Designee"), who shall be reasonably acceptable to Charter I, Charter II and
Ciba-Geigy. The Volendam Designee shall initially be Xxxxx Xxxxxx. Any vacancy
occurring because of the death, resignation, or removal of the Volendam
Designee shall be filled according to this paragraph 1(b).
(c) One designee of Ciba-Geigy (the
"Ciba-Geigy Designee"), who shall be reasonably acceptable to Charter I,
Charter II and Volendam. The Ciba-Geigy Designee shall initially be Xx.
Xxxxxxxx Xxxxxxxx. Any
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vacancy occurring because of the death, resignation, or removal of the
Ciba-Geigy Designee shall be filled according to this paragraph 1(c).
(d) With respect to the remaining directors
not elected pursuant to Sections 1(a), (b) and (c), the Shareholders shall vote
their Shares to elect directors who are not affiliated in any material respect
with any of the Shareholders but are reasonably acceptable to all of the
Shareholders (the "Remaining Designees"). The Shareholders shall vote their
Shares to fill any vacancy occurring because of the death, resignation, or
removal of a Remaining Designee according to this paragraph 1(d).
2. Successors in Interest of the Shareholders. The
provisions of this Agreement shall be binding upon the successors in interest
of the Shareholders to any of the Shareholders' Shares, excluding any
purchasers of Shares in the public market.
3. Covenants of the Company. The Company agrees to take all
actions required to ensure that the rights given to the Shareholders hereunder
are effective and that the Shareholders enjoy the benefits thereof. Such
actions include, without limitation, the use of the Company's best efforts to
cause the nomination of the designees of the Shareholders, as provided herein,
for election as directors of the Company. The Company will not, by any
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be performed hereunder by the Company, but will at all times in
good faith assist in the carrying out of all of the provisions of this
Agreement and in the taking of all such actions as may be necessary or
appropriate in order to protect the rights of the Shareholders hereunder
against impairment.
4. Termination. This Agreement shall terminate upon the
earlier of (a) such time as any of the Shareholders or their successors in
interest bound hereby (with the holdings of Charter I and Charter II
aggregated) does not hold an aggregate of 2,000,000 shares of voting securities
of the Company, as adjusted for stock splits, recapitalizations and the like,
or (b) December 31, 2005.
5. Amendments and Waivers. Any term hereof may be amended
and the observance of any term hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and each of the Shareholders.
6. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held to
be prohibited
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by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
7. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California, without regard to the
conflict of laws provisions thereof.
8. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9. Successors and Assigns. Except as otherwise expressly
provided in this Agreement, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors and assigns of the parties hereto.
Notwithstanding any other provision of this Agreement, Ciba-Geigy may assign
all of its rights and obligations hereunder in connection with the merger of
Ciba-Geigy and Sandoz Limited, and the formation of a new entity, Novartis.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
HESKA CORPORATION
By: /s/ XXXX X. XXXXXXXXX
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Title: President
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Address: 0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Chief Executive Officer
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SHAREHOLDERS:
CIBA-GEIGY LIMITED, a Swiss corporation
By: /s/ X.X. XXXXXXX XX. X. XXXXXXXXX
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X.X. XXXXXXX
President Animal Xx. X. Xxxxxxxxx
Title: Health Division Division Counsel
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Address: Klybecksts A4A
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0000 Xxxxx
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Attention: Dr. R. Muttenzer
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CHARTER VENTURES, a California limited
partnership
By: /s/ X. XXXX XXXXX
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Title: General Partner
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Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Attention: X. Xxxx Xxxxx
CHARTER VENTURES II, L.P.
By: /s/ X. XXXX XXXXX
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Title: GENERAL PARTNER
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Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Attention: X. Xxxx Xxxxx
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VOLENDAM INVESTERINGEN N.V.
/s/ ANNEKE SOEDHOE
By: Mees Pierson Trust (Curacao) N.V.
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Title: Managing Director
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Address: c/o Mees Pierson Trust (Curacao)
00 Xxxx X. Xxxxxxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx Antilles
Attention: Xxxxxxxx Xxxxxx
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