| HESKA CORP Item 1A Risk Factors Our future operating results may vary substantially from period to period due to a number of factors, many of which are beyond our control |
| The following discussion highlights these factors and the possible impact of these factors on future results of operations |
| If any of the following factors actually occur, our business, financial condition or results of operations could be harmed |
| In that case, the price of our common stock could decline and you could experience losses on your investment |
| We may be unable to successfully market, sell and distribute our products |
| We may not successfully develop and maintain marketing, distribution or sales capabilities, and we may not be able to make arrangements with third parties to perform these activities on satisfactory terms |
| If our marketing, sales and distribution strategy is unsuccessful, our ability to sell our products will be negatively impacted and our revenues will decrease |
| The market for companion animal healthcare products is highly fragmented |
| Because our Core Companion Animal Health proprietary products are generally available only to veterinarians or by prescription and our medical instruments require technical training to operate, we ultimately sell our Core Companion Animal Health products only to or through veterinarians |
| The acceptance of our products by veterinarians is critical to our success |
| Changes in our ability to obtain or maintain such acceptance or changes in veterinary medical practice could significantly decrease our anticipated sales |
| We currently market our Core Companion Animal Health products in the United States to veterinarians through approximately 10 independent third-party distributors who carry our full line of Core Companion Animal Health products, approximately 14 independent third-party distributors who carry 12 ______________________________________________________________________ portions of our Core Companion Animal Health product line and through a direct sales force of approximately 28 individuals |
| To be successful, we will have to effectively market our products and continue to develop and train our direct sales force as well as sales personnel of our distributors and rely on other arrangements with third parties to market, distribute and sell our products |
| In addition, most of our distributor agreements can be terminated on 60 days notice and we believe that IDEXX, one of our largest competitors, effectively prohibits its distributors from selling competitive products, including our diagnostic instruments and heartworm diagnostic tests |
| We believe this restriction significantly limits our ability to engage national distributors to sell our full line of products and significantly restricts our ability to market our products to veterinarians |
| In 2002, one of our largest distributors informed us that they were going to carry IDEXX products and that they no longer would carry our diagnostic instruments and heartworm diagnostic tests |
| In late 2004, this distributor acquired another of our distributors |
| We believe IDEXX effectively prohibits this distributor from carrying our diagnostic instruments and heartworm diagnostic tests as a condition for having access to buy the IDEXX product line |
| The loss of products or delays in product availability from one or more third-party supplier could substantially harm our business |
| To be successful, we must contract for the supply of, or manufacture ourselves, current and future products of appropriate quantity, quality and cost |
| Such products must be available on a timely basis and be in compliance with any regulatory requirements |
| Failure to do so could substantially harm our business |
| We currently rely on third party suppliers to manufacture those products we do not manufacture ourselves |
| Products provided by these suppliers represent a majority of our revenues |
| We currently rely on these suppliers for our veterinary diagnostic and patient monitoring instruments and consumable supplies for these instruments, for certain of our point-of-care diagnostic and other tests, for the manufacture of our allergy immunotherapy treatment products as well as for the manufacture of other products |
| Major suppliers who sell us products they manufacture which are responsible for more than 5prca or more of our revenue are i-STAT Corporation (a unit of Abbott Laboratories), Arkray Global Business, Inc, Boule Medical AB and Quidel |
| We often purchase products from our suppliers under agreements that are of limited duration or potentially can be terminated on an annual basis |
| Although we believe we have agreements in place to ensure supply of our major product offerings through at least the end of 2006 and we believe we are in compliance with such agreements, there can be no assurance that our suppliers will be able to meet their obligations under these agreements or that we will be able to compel them to do so |
| Risks of relying on suppliers include: • The loss of product rights upon expiration or termination of an existing agreement |
| Unless we are able to find an alternate supply of a similar product, we would not be able to continue to offer our customers the same breadth of products and our sales and operating results would likely suffer |
| In the case of an instrument supplier, we could also potentially suffer the loss of sales of consumable supplies, which would be significant in cases where we have built a significant installed base, further harming our sales prospects and opportunities |
| Even if we were able to find an alternate supply, we would likely face increased competition from the product whose rights we lost being marketed by a third party or the former supplier and it may take us additional time and expense to gain the necessary approvals and launch an alternative product |
| • High switching costs |
| In certain of our medical products we would lose the consumable revenues from the installed base of those instruments if we were to switch to a competitive instrument |
| If we need to change to other commercial manufacturing contractors for certain of our regulated products, additional regulatory licenses or approvals must be obtained for these contractors prior to our use |
| This would require new testing and compliance inspections prior to sale thus resulting in potential delays |
| Any new manufacturer would have to be educated in, or develop substantially equivalent processes necessary for the production of our products |
| We likely would 13 ______________________________________________________________________ have to train our salesforce, distribution network employees and customer support organization on the new product and spend significant funds marketing the new product to our customer base |
| • The involuntary or voluntary discontinuation of a product line |
| Unless we are able to find an alternate supply of a similar product in this or similar circumstances with any product, we would not be able to continue to offer our customers the same breadth of products and our sales would likely suffer |
| Even if we are able to identify an alternate supply, it may take us additional time and expense to gain the necessary approvals and launch an alternative product, especially if the product is discontinued unexpectedly |
| • Inability to meet minimum obligations |
| Current agreements, or agreements we may negotiate in the future, may commit us to certain minimum purchase or other spending obligations |
| It is possible we will not be able to create the market demand to meet such obligations, which could create a drain on our financial resources and liquidity |
| Some such agreements may require minimum purchases and/or sales to maintain product rights and we may be significantly harmed if we are unable to meet such requirements and lose product rights |
| • Loss of exclusivity |
| Current agreements, or agreements we may negotiate in the future, with suppliers may require us to meet minimum annual sales levels to maintain our position as the exclusive distributor of these products |
| We may not meet these minimum sales levels in the future and maintain exclusivity over the distribution and sale of these products |
| If we are not the exclusive distributor of these products, competition may increase |
| • Limited capacity or ability to scale capacity |
| If market demand for our products increases suddenly, our current suppliers might not be able to fulfill our commercial needs, which would require us to seek new manufacturing arrangements and may result in substantial delays in meeting market demand |
| If we consistently generate more demand for a product than a given supplier is capable of handling, it could lead to large backorders and potentially lost sales to competitive products that are readily available |
| This could require us to seek or fund new sources of supply, which may be difficult to find unless it is under terms that are less advantageous |
| • Inconsistent or inadequate quality control |
| We may not be able to control or adequately monitor the quality of products we receive from our suppliers |
| Poor quality items could damage our reputation with our customers |
| • Regulatory risk |
| Our manufacturing facility and those of some of our third party suppliers are subject to ongoing periodic unannounced inspection by regulatory authorities, including the FDA, USDA and other federal and state agencies for compliance with strictly enforced Good Manufacturing Practices, regulations and similar foreign standards, and we do not have control over our suppliers’ compliance with these regulations and standards |
| Violations could potentially lead to interruptions in supply that could cause us to lose sales to readily available competitive products |
| • Developmental delays |
| We may experience delays in the scale-up quantities needed for product development that could delay regulatory submissions and commercialization of our products in development, causing us to miss key opportunities |
| • Limited intellectual property rights |
| We may not have intellectual property rights, or may have to share intellectual property rights, to the products themselves and any improvements to the manufacturing processes or new manufacturing processes for our products |
| 14 ______________________________________________________________________ Potential problems with suppliers such as those discussed above could substantially decrease sales, lead to higher costs, damage our reputation with our customers due to factors such as poor quality goods or delays in order fulfillment, resulting in our being unable to effectively sell our products and substantially harm our business |
| If the third parties to whom we granted substantial marketing rights for certain of our existing products or future products under development are not successful in marketing those products, then our sales and financial position may suffer |
| Our agreements with our corporate marketing partners generally contain no or small minimum purchase requirements in order for them to maintain their exclusive or co-exclusive marketing rights |
| We are party to an agreement with SPAH which grants distribution and marketing rights in the US for our canine heartworm preventive product, TRI-HEART Chewable Tablets |
| AgriLabs has the exclusive right to sell certain of our bovine vaccines in the United States, Africa, China, Mexico and Taiwan |
| Novartis Agro KK markets and distributes our SOLO STEP CH heartworm test in Japan |
| Furthermore, there may be nothing to prevent these partners from pursuing alternative technologies or products that may compete with our products in current or future agreements |
| In the future, third-party marketing assistance may not be available on reasonable terms, if at all |
| If any of these events occur, we may not be able to commercialize our products and our sales will decline |
| In addition, both our agreements with SPAH and AgriLabs require us to potentially pay penalties if we are unable to supply product over an extended period of time |
| Many of our expenses are fixed and if factors beyond our control cause our revenue to fluctuate, this fluctuation could cause greater than expected losses, cash flow and liquidity shortfalls |
| We believe that our future operating results will fluctuate on a quarterly basis due to a variety of factors which are generally beyond our control, including: • supply of products from third party suppliers or termination of such relationships; • the introduction of new products by our competitors or by us; • competition and pricing pressures from competitive products; • our ability to maintain relationships with distributors; • large customers failing to purchase at historical levels, including changes in distributor purchasing patterns and inventory levels; • fundamental shifts in market demand; • manufacturing delays; • shipment problems; • regulatory and other delays in product development; • product recalls or other issues which may raise our costs; • changes in our reputation and/or market acceptance of our current or new products; and • changes in the mix of products sold |
| We have high operating expenses for personnel, marketing and new product development |
| If any of the factors listed above cause our revenues to decline, our operating results could be substantially harmed |
| 15 ______________________________________________________________________ We have historically not consistently generated positive cash flow from operations and may need additional capital and any required capital may not be available on acceptable terms or at all |
| If our actual performance deviates from our operating plan, which anticipates we will be profitable in fiscal 2006 as a whole, we may be required to raise additional capital in the future |
| If necessary, we expect to raise these additional funds through one or more of the following: (1) sale of equity or debt securities; (2) obtaining new loans secured by unencumbered assets, or refinancing loans currently outstanding on properties with historical appraised values significantly in excess of related debt; (3) sale of assets, products or marketing rights; and (4) licensing of technology |
| There is no guarantee that additional capital will be available from these sources on acceptable terms, if at all, and certain of these sources may require approval by existing lenders |
| The public markets may be unreceptive to equity financings and we may not be able to obtain additional private equity or debt financing |
| Any equity financing would likely be dilutive to stockholders and additional debt financing, if available, may include restrictive covenants and increased interest rates that would limit our currently planned operations and strategies |
| We may not find any third parties interested in licensing our intellectual property or purchasing any of our assets, products or marketing rights in a timely manner, or at all |
| If we relinquish rights to certain of our intellectual property, or sell certain of our assets, products or marketing rights it may limit our future prospects |
| Additionally, amounts we expect to be available under our existing revolving line of credit may not be available and other lenders could refuse to provide us with additional debt financing |
| Furthermore, even if additional capital is available, it may not be of the magnitude required to meet our needs under these or other scenarios |
| If additional funds are required and are not available, it would likely have a material adverse effect on our business, financial condition and our ability to continue as a going concern |
| Interpretation of existing legislation, regulations and rules or implementation of future legislation, regulations and rules could cause our costs to increase or could harm us in other ways |
| The Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”) has increased our required administrative actions as a public company |
| The increase in general and administrative costs of complying with Sarbanes-Oxley will depend on how it is interpreted over time |
| Of particular concern are the level and timing of standards for internal control evaluation and reporting adopted under Section 404 of Sarbanes-Oxley |
| If our regulators and/or auditors adopt or interpret more stringent standards than we are anticipating, we and/or our auditors may be unable to conclude that our internal controls over financial reporting are designed and operating effectively, which could adversely affect investor confidence in our financial statements |
| Even if we and our auditors are able to conclude that our internal controls over financial reporting are designed and operating effectively in such a circumstance, our general and administrative costs are likely to increase |
| We may be required to obtain an audit of our internal controls for the year ending December 31, 2006 if we are an accelerated filer as defined by Rule 12b-2 of the Securities Exchange Act of 1934, as amended, on June 30, 2006, and, if so, our general and administrative costs are likely to increase in 2006 |
| Actions by other entities, such as enhanced rules to maintain our listing on the Nasdaq Capital Market, could also increase our general and administrative costs, as could further legislative action |
| We may not be able to achieve sustained profitability |
| Prior to 2005, we have incurred net losses on an annual basis since our inception in 1988 and, as of December 31, 2005, we had an accumulated deficit of dlra209dtta8 million |
| Notwithstanding our positive net income in 2005 and our expectation of profitability for 2006 as a whole, we have not consistently achieved profitability on an annual basis |
| Our ability to be profitable in future periods will depend, in part, on our ability to increase sales in our Core Companion Animal Health segment, including maintaining and growing our installed base of instruments and related consumables, to maintain or increase gross margins and to at least limit the increase in our operating expenses to a reasonable level |
| Even if we achieve profitability, we may not be able to sustain or increase profitability on a quarterly or annual basis |
| If we cannot achieve or 16 ______________________________________________________________________ sustain profitability for an extended period, we may not be able to fund our expected cash needs, including the repayment of debt as it comes due, or continue our operations |
| We often depend on third parties for products we intend to introduce in the future |
| If our current relationships and collaborations are not successful, we may not be able to introduce the products we intend to in the future |
| We are often dependent on third parties and collaborative partners to successfully and timely perform research and development activities to successfully develop new products |
| For example, we jointly developed point-of-care diagnostic products with Quidel, and Quidel manufactures these products |
| In other cases, we have discussed Heska marketing in the veterinary market an instrument being developed by a third party for use in the human health care market |
| In the future, one or more of these third parties or collaborative partners may not complete research and development activities in a timely fashion, or at all |
| Even if these third parties are successful in their research and development activities, we may not be able to come to an economic agreement with them |
| If these third parties or collaborative partners fail to complete research and development activities, fail to complete them in a timely fashion, or if we are unable to negotiate economic agreements with such third parties or collaborative partners, our ability to introduce new products will be impacted negatively and our revenues may decline |
| We operate in a highly competitive industry, which could render our products obsolete or substantially limit the volume of products that we sell |
| This would limit our ability to compete and achieve profitability |
| The market in which we compete is intensely competitive |
| Our competitors include independent animal health companies and major pharmaceutical companies that have animal health divisions |
| We also compete with independent, third party distributors, including distributors who sell products under their own private labels |
| In the point-of-care diagnostic testing market, our major competitors include IDEXX, Abaxis, Inc, Agenix Limited and Synbiotics Corporation |
| The products manufactured by our OVP segment for sale by third parties compete with similar products offered by a number of other companies, some of which have substantially greater financial, technical, research and other resources than us and may have more established marketing, sales, distribution and service organization’s than our OVP segment’s customers |
| Competitors may have facilities with similar capabilities to our OVP segment, which they may operate at a lower unit price to their customers, which could cause us to lose customers |
| Companies with a significant presence in the companion animal health market, such as Bayer AG, Intervet International bv (a unit of Akzo Nobel NV), Merial Limited, Novartis AG, Pfizer Inc, Schering-Plough Corporation, Virbac SA and Wyeth (formerly American Home Products), may be marketing or developing products that compete with our products or would compete with them if developed |
| These and other competitors may have substantially greater financial, technical, research and other resources and larger, more established marketing, sales, distribution and service organizations than we do |
| Our competitors may offer broader product lines and have greater name recognition than we do |
| Our competitors may develop or market technologies or products that are more effective or commercially attractive than our current or future products or that would render our technologies and products obsolete |
| Further, additional competition could come from new entrants to the animal health care market |
| Moreover, we may not have the financial resources, technical expertise or marketing, distribution or support capabilities to compete successfully |
| We believe that one of our largest competitors, IDEXX, effectively prohibits its distributors from selling competitive products, including our diagnostic instruments and heartworm diagnostic tests |
| If we fail to compete successfully, our ability to achieve sustained profitability will be limited and sustained profitability, or profitability at all, may not be possible |
| 17 ______________________________________________________________________ The loss of significant customers could harm our operating results |
| Although no single customer accounted for more than 10prca of our consolidated revenue or accounts receivable for either of the twelve month periods ended December 31, 2004 and 2005, revenue from our contract with AgriLabs comprised approximately 15prca of consolidated revenue in 2003 |
| While we do not have any other customers who represented more than 10prca of revenues over the last three years, the loss of significant customers who, for example, are historically large purchasers or who are considered leaders in their field could damage our business and financial results |
| For example, on March 8, 2006, Henry Schein, Inc |
| (“Henry Schein”) announced a definitive agreement to acquire NLS Animal Health (“NLS”) |
| Henry Schein is our largest independent third party distributor and NLS is a distributor of IDEXX products |
| We believe IDEXX effectively prohibits its distributors from selling competitive products, including our diagnostic instruments and heartworm diagnostic tests |
| If Henry Schein were to decide not to carry our full product line due to prohibitions IDEXX effectively places on its distributors or for other reasons, our sales would likely suffer as it is unlikely we would completely recover the corresponding lower sales to Henry Schein through direct sales and sales through other distributors |
| We may face costly intellectual property or other legal disputes, or our technology or that of our suppliers or collaborators may become the subject of legal action |
| Our ability to compete effectively will depend in part on our ability to develop and maintain proprietary aspects of our technology and either to operate without infringing the proprietary rights of others or to obtain rights to technology owned by third parties |
| We have United States and foreign-issued patents and are currently prosecuting patent applications in the United States and various foreign countries |
| Our pending patent applications may not result in the issuance of any patents or any issued patents that will offer protection against competitors with similar technology |
| Patents we receive may be challenged, invalidated or circumvented in the future or the rights created by those patents may not provide a competitive advantage |
| We also rely on trade secrets, technical know-how and continuing invention to develop and maintain our competitive position |
| Others may independently develop substantially equivalent proprietary information and techniques or otherwise gain access to our trade secrets |
| We may become subject to additional patent infringement claims and litigation in the United States or other countries or interference proceedings conducted in the United States Patent and Trademark Office, or USPTO, to determine the priority of inventions |
| The defense and prosecution of intellectual property suits, USPTO interference proceedings, and related legal and administrative proceedings are costly, time-consuming and distracting |
| We may also need to pursue litigation to enforce any patents issued to us or our collaborative partners, to protect trade secrets or know-how owned by us or our collaborative partners, or to determine the enforceability, scope and validity of the proprietary rights of others |
| Any litigation or interference proceeding will result in substantial expense to us and significant diversion of the efforts of our technical and management personnel |
| Any adverse determination in litigation or interference proceedings could subject us to significant liabilities to third parties |
| Further, as a result of litigation or other proceedings, we may be required to seek licenses from third parties which may not be available on commercially reasonable terms, if at all |
| We license technology from a number of third parties, including New England Biolabs, Inc |
| and Roche Molecular Systems, Inc, as well as a number of research institutions and universities |
| The majority of these license agreements impose due diligence or milestone obligations on us, and in some cases impose minimum royalty and/or sales obligations on us, in order for us to maintain our rights under these agreements |
| Our products may incorporate technologies that are the subject of patents issued to, and patent applications filed by, others |
| As is typical in our industry, from time to time we and our collaborators have received, and may in the future receive, notices from third parties claiming infringement and invitations to take licenses under third party patents |
| While we currently do not have any unresolved notices of infringement, there is no 18 ______________________________________________________________________ assurance that there will be none in the future |
| Any legal action against us or our collaborators may require us or our collaborators to obtain one or more licenses in order to market or manufacture affected products or services |
| However, we or our collaborators may not be able to obtain licenses for technology patented by others on commercially reasonable terms, or at all, we may not be able to develop alternative approaches if unable to obtain licenses, or current and future licenses may not be adequate for the operation of our businesses |
| Failure to obtain necessary licenses or to identify and implement alternative approaches could prevent us and our collaborators from commercializing our products under development and could substantially harm our business |
| We may also face legal disputes relating to other areas of our business |
| These disputes may require significant expenditures on our part and could have material adverse consequences on our business in the case of an unfavorable ruling or settlement |
| For example, on September 9, 2005, United Vaccines, Inc |
| (“United”), a customer of our OVP segment, filed a lawsuit in Madison, Wisconsin against our Diamond Animal Health, Inc |
| subsidiary (“Diamond”) and Heska Corporation alleging various claims, including breach of contract and breach of warranty, and demanding compensatory and punitive damages |
| On October 20, 2005, we filed a motion to dismiss certain claims against Diamond and all claims against Heska, as well as an answer to United’s claims, affirmative defenses and counterclaims on behalf of Diamond |
| Both sides subsequently filed amended complaints and the matter is ongoing |
| While we intend to pursue the matter vigorously and believe we are entitled to damages from United and that United is not entitled to damages from Heska or Diamond, there can be no assurance the ultimate resolution of this case will reflect our current beliefs |
| Our future revenues depend on successful research, development, commercialization and/or market acceptance, any of which can be slower than we expect or may not occur |
| The research, development and regulatory approval process for many of our products is extensive and may take substantially longer than we anticipate |
| New products that we are developing for the veterinary marketplace may not perform up to our expectations |
| Because we have limited resources to devote to product development and commercialization, any delay in the research or development of one product or reallocation of resources to product development efforts that prove unsuccessful may delay or jeopardize the development of other product candidates |
| If we fail to successfully develop new products and bring them to market in a timely manner, our ability to generate additional revenue will decrease |
| Even if we are successful in the research and development of a product, we may experience delays in commercialization and/or market acceptance |
| For example, there may be delays in producing large volumes of a product or veterinarians may be slow to adopt a product |
| The latter is particularly likely where there is no comparable product available or historical use of such a product |
| For example, while we believe our ERD-HEALTHSCREEN urine tests for dogs and cats represent a significant scientific breakthrough in companion animal annual health examinations, market acceptance of the product has been significantly slower than we anticipated |
| The ultimate adoption of a new product by veterinarians, the rate of such adoption and the extent veterinarians choose to integrate such a product into their practice are all important factors in the economic success of one of our new products and are factors that we do not control to a large extent |
| If our products do not achieve a significant level of market acceptance, demand for our products will not develop as expected and our revenues will be lower than we anticipate |
| Our stock price has historically experienced high volatility, which may increase in the future, and which could affect our ability to raise capital in the future or make it difficult for investors to sell their shares |
| The securities markets have experienced significant price and volume fluctuations and the market prices of securities of many microcap and smallcap companies have in the past been, and can in the future be 19 ______________________________________________________________________ expected to be, especially volatile |
| Fluctuations in the trading price or liquidity of our common stock may adversely affect our ability to raise capital through future equity financings |
| Factors that may have a significant impact on the market price and marketability of our common stock include: • stock sales by large stockholders or by insiders; • our quarterly operating results, including as compared to our revenue, earnings or other guidance and in comparison to historical results; • termination of our third party supplier relationships; • announcements of technological innovations or new products by our competitors or by us; • litigation; • regulatory developments, including delays in product introductions; • developments in our relationships with collaborative partners; • developments or disputes concerning patents or proprietary rights; • availability of our revolving line of credit and compliance with debt covenants; • releases of reports by securities analysts; • changes in regulatory policies; • economic and other external factors; and • general market conditions |
| In the past, following periods of volatility in the market price of a company’s securities, securities class action litigation has often been instituted |
| If a securities class action suit is filed against us, it is likely we would incur substantial legal fees and our management’s attention and resources would be diverted from operating our business in order to respond to the litigation |
| Our common stock is listed on the Nasdaq Capital Market and we may not be able to maintain that listing, which may make it more difficult for you to sell your shares |
| Our common stock is listed on the Nasdaq Capital Market |
| The Nasdaq has several quantitative and qualitative requirements companies must comply with to maintain this listing, including a dlra1dtta00 minimum bid price |
| While we believe we are currently in compliance with all Nasdaq requirements, we have not always been able to maintain compliance in the past and there can be no assurance we will maintain compliance in the future |
| For example, in 2005 we received two communications from Nasdaq advising us we had failed to comply with the minimum dlra1dtta00 per share bid price requirement and the dlra35 million minimum value of listed securities requirement, respectively |
| While we subsequently received communications from Nasdaq advising us we have regained compliance in both matters and that both matters are now closed, there can be no assurance we will continue to meet these requirements or other requirements in the future |
| If we are delisted from the Nasdaq Capital Market, our common stock may be considered a penny stock under the regulations of the SEC and would therefore be subject to rules that impose additional sales practice requirements on broker-dealers who sell our securities |
| The additional burdens imposed upon broker-dealers may discourage broker-dealers from effecting transactions in our common stock, which could severely limit market liquidity of the common stock and your ability to sell our securities in the secondary market |
| This lack of liquidity would also make it more difficult for us to raise capital in the future |
| If we are unable to maintain various financial and other covenants under our credit facility agreement we will be unable to borrow any funds under the agreement and fund our operations |
| Under our credit and security agreement with Wells Fargo, as amended and restated in December 2005 and under prior agreements, we are required to comply with various financial and non-financial covenants in order to borrow under the agreement |
| The availability of borrowings under this agreement is 20 ______________________________________________________________________ essential to continue to fund our operations |
| Among the financial covenants is a requirement to maintain minimum liquidity (cash plus excess borrowing base) of dlra1dtta5 million |
| Additional requirements include covenants for minimum capital monthly and minimum net income quarterly |
| Although we believe we will be able to maintain compliance with all these covenants and any covenants we may negotiate in the future, there can be no assurance thereof |
| We have not always been able to maintain compliance with all covenants in the past, including in the first four months of 2005 and on June 30, 2005 |
| Wells Fargo granted us a waiver of non-compliance in each case |
| However, there can be no assurance we will be able to obtain similar waivers or other modifications if needed in the future |
| Failure to comply with any of the covenants, representations or warranties, or failure to modify them to allow future compliance, could result in our being in default under the loan and could cause all outstanding amounts and loans with our other lenders to become immediately due and payable, or impact our ability to borrow under the agreement |
| We intend to rely on available borrowings under the credit and security agreement to fund our operations in the future |
| If we are unable to borrow funds under this agreement, we will need to raise additional capital from other sources to continue our operations, which capital may not be available on acceptable terms, or at all |
| Obtaining and maintaining regulatory approvals in order to market our regulated products may be costly and delay the marketing and sales of our products |
| Many of the products we develop, market or manufacture are subject to extensive regulation by one or more of the USDA, the FDA, the EPA and foreign regulatory authorities |
| These regulations govern, among other things, the development, testing, manufacturing, labeling, storage, pre-market approval, advertising, promotion, sale and distribution of our products |
| Satisfaction of these requirements can take several years and time needed to satisfy them may vary substantially, based on the type, complexity and novelty of the product |
| The effect of government regulation may be to delay or to prevent marketing of our products for a considerable period of time and to impose costly procedures upon our activities |
| We have experienced in the past, and may experience in the future, difficulties that could delay or prevent us from obtaining the regulatory approval or license necessary to introduce or market our products |
| Such delays in approval may cause us to forego a significant portion of a new product’s sales in its first year due to seasonality and advanced booking periods associated with certain products |
| Regulatory approval of our products may also impose limitations on the indicated or intended uses for which our products may be marketed |
| Among the conditions for certain regulatory approvals is the requirement that our facilities and/or the facilities of our third party manufacturers conform to current Good Manufacturing Practices |
| Our manufacturing facilities and those of our third party manufacturers must also conform to certain other manufacturing regulations, which include requirements relating to quality control and quality assurance as well as maintenance of records and documentation |
| The USDA, FDA and foreign regulatory authorities strictly enforce manufacturing regulatory requirements through periodic inspections |
| If any regulatory authority determines that our manufacturing facilities or those of our third party manufacturers do not conform to appropriate manufacturing requirements, we or the manufacturers of our products may be subject to sanctions, including warning letters, manufacturing suspensions, product recalls or seizures, injunctions, refusal to permit products to be imported into or exported out of the United States, refusals of regulatory authorities to grant approval or to allow us to enter into government supply contracts, withdrawals of previously approved marketing applications, civil fines and criminal prosecutions |
| In addition, certain of our agreements require us to pay penalties if we are unable to supply products, including for failure to maintain regulatory approvals |
| 21 ______________________________________________________________________ We depend on key personnel for our future success |
| If we lose our key personnel or are unable to attract and retain additional personnel, we may be unable to achieve our goals |
| Our future success is substantially dependent on the efforts of our senior management and other key personnel, including Dr |
| Robert Grieve, our Chairman and Chief Executive Officer |
| The loss of the services of members of our senior management or other key personnel may significantly delay or prevent the achievement of our business objectives |
| Although we have an employment agreement with many of these individuals, all are at-will employees, which means that either the employee or Heska may terminate employment at any time without prior notice |
| If we lose the services of, or fail to recruit, key personnel, the growth of our business could be substantially impaired |
| We do not maintain key person life insurance for any of our key personnel |
| Changes to financial accounting standards may affect our results of operations and cause us to change our business practices |
| We prepare our financial statements in conformance with United States generally accepted accounting principles, or GAAP These accounting principles are established by and are subject to interpretation by the Financial Accounting Standards Board, the American Institute of Certified Public Accountants, the SEC and various bodies formed to interpret and create appropriate accounting policies |
| A change in those policies can have a significant effect on our reported results and may affect our reporting of transactions completed before a change is made effective |
| Changes to those rules may adversely affect our reported financial results or the way we conduct our business |
| We may face product returns and product liability litigation in excess of or not covered by our insurance coverage |
| If we become subject to product liability claims resulting from defects in our products, we may fail to achieve market acceptance of our products and our sales could substantially decline |
| The testing, manufacturing and marketing of our current products as well as those currently under development entail an inherent risk of product liability claims and associated adverse publicity |
| Following the introduction of a product, adverse side effects may be discovered |
| Adverse publicity regarding such effects could affect sales of our other products for an indeterminate time period |
| To date, we have not experienced any material product liability claims, but any claim arising in the future could substantially harm our business |
| Potential product liability claims may exceed the amount of our insurance coverage or may be excluded from coverage under the terms of the policy |
| We may not be able to continue to obtain adequate insurance at a reasonable cost, if at all |
| In the event that we are held liable for a claim against which we are not indemnified or for damages exceeding the dlra10 million limit of our insurance coverage or which results in significant adverse publicity against us, we may lose revenue, be required to make substantial payments which could exceed our financial capacity and/or lose or fail to achieve market acceptance |
| Furthermore, our agreements with some suppliers of our instruments contain limited warranty provisions, which may subject us to liability if a supplier fails to meet its warranty obligations if a defect is traced to our instrument or if we cannot correct errors reported during the warranty period |
| If our contractual limitations are unenforceable in a particular jurisdiction, a successful claim could require us to pay substantial damages |
| We may be held liable for the release of hazardous materials, which could result in extensive clean up costs or otherwise harm our business |
| Certain of our products and development programs produced at the Iowa facility involve the controlled use of hazardous and biohazardous materials, including chemicals, infectious disease agents and various radioactive compounds |
| Although we believe that our safety procedures for handling and disposing of such materials comply with the standards prescribed by applicable local, state and federal regulations, we cannot eliminate the risk of accidental contamination or injury from these materials |
| In the event of such an 22 ______________________________________________________________________ accident, we could be held liable for any fines, penalties, remediation costs or other damages that result |
| Our liability for the release of hazardous materials could exceed our resources, which could lead to a shutdown of our operations, significant remediation costs and potential legal liability |
| In addition, we may incur substantial costs to comply with environmental regulations if we choose to expand our manufacturing capacity |