EXHIBIT 10.33
HESKA CORPORATION
CONSULTANT SERVICES AND CONFIDENTIALITY AGREEMENT
This Agreement is made between me, the undersigned, and Heska
Corporation and its affiliates, as defined in this Agreement (the "Company"), as
of this 14th day of December, 1998. In consideration of my retention by the
Company to perform consulting services and the compensation to be paid to me, I
hereby agree with the Company as follows:
1.0 Consulting. I agree to serve as Executive Vice President,
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Operations of the Company from the date of this Agreement through December 31,
1998 and as a consultant to the Company for the period commencing on January 1,
1999 and concluding on the date set forth on Exhibit A hereto, subject to the
termination of this Agreement in accordance with Section 7. The period during
which I serve as a consultant to the Company is referred to as the "Consulting
Period".
2.0 Duties. My consulting services will be in connection with the
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activities specified on Exhibit A. During the Consulting Period, I will perform
all duties to the best of my ability. In the performance of such duties, I will
consult with the Company in the manner set forth on Exhibit A, to take place at
the Company's facilities or at another place reasonably requested by the
Company. I will be available for reasonable telephone consultation with the
Company or the other parties with respect to whom my consulting services are
being rendered.
3.0 Compensation. The parties agree that my sole compensation for
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services rendered pursuant to this Agreement shall be as set forth on Exhibit A.
4.0 Confidential Information.
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4.1 Access to Confidential Information. I understand that, during the
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Consulting Period with the Company, I will be exposed, in the trust and
confidence of the Company, to confidential information and data, including
techniques, know-how, trade secrets, procedures, business matters or affairs,
inventions, designs, methods, systems, improvements or other information
designated as confidential (herein "Confidential Information") belonging to the
Company or its subsidiaries or to its customers or others with whom the Company
has a joint venture, research contract or other business relationship (all such
subsidiaries, customers and other parties referred to herein as "affiliates")
requiring the Company to maintain the confidentiality of such information.
4.2 Nondisclosure of Confidential Information. I agree that, during
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the Consulting Period or thereafter, I will not, directly or indirectly,
disclose any Confidential Information to any third party or use any Confidential
Information for any purpose other than providing services to the Company without
the prior written approval of the Company. For purposes of this Agreement,
information shall be considered to be confidential if not known by the trade
generally even though such information has been disclosed to one or more third
parties pursuant to distribution or licensing agreements, research agreements or
other agreements or in connection with other business relationships. Such
information will not be considered to be confidential, however, to the extent
that it is or becomes, through no fault of mine, publicly known or to the extent
that I already knew such information at the time of its disclosure to me by the
Company, as evidenced by written materials in my files.
4.3 Confidential Information Property of the Company. I understand
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that all data, including drawings, prints, specifications, designs, notes,
notebooks, records, documents, reproductions or other papers or memoranda of
every kind which come into my possession in the course of providing the
consulting services are the sole property of the Company, and I will surrender
all such property to the Company upon request and in any event upon termination
of my services.
5.0 Assignment of Inventions.
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5.1 Maintenance of Records. I agree to keep separate and segregated
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from my other personal property, including any work I am doing for any other
party, all documents, records, notebooks and correspondence relating to my work
for the Company, and to maintain notebooks and other records in such form as the
Company reasonably requests.
5.2 Disclosure of Inventions. I will promptly disclose to the Company
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all Inventions, as defined below. The term "Inventions" includes, but is not
limited to, concepts, ideas, processes, programs, algorithms, methods, formulae,
compositions, techniques, articles, and machines, as well as improvements
thereof or know-how related thereto) and all original works of authorship
(herein "Inventions"), whether or not patentable, copyrightable or protectable
as trade secrets, which are conceived or made by me, alone or with others, (i)
during the term of this Agreement, if such Inventions relate in any manner to
the actual business or research or anticipated business or research disclosed to
me, including any business or research conducted by the Company for or jointly
with any other party, or (ii) during the term of this Agreement or thereafter,
if such Inventions are developed using trade secret information of the Company
or result from work performed by me for the Company.
5.3 Assignment of Inventions. I hereby assign to the Company my
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entire rights to each Invention described in Section 5.2 hereof. I will execute
all papers and documents as requested by the Company to obtain and enforce any
patent, copyright or other protection which the Company elects to obtain or
enforce, in any country, in my name or the Company's name (or the name of an
appropriate Company affiliate), as the case may be, at the Company's expense. My
obligation to assist the Company in obtaining and enforcing patents, copyrights
and other protections shall continue beyond the termination of my services, but
the Company shall compensate me at a reasonable rate after the termination of my
services for time actually spent at the Company's request providing such
assistance. If the Company is unable, after reasonable effort, to secure my
signature on any document needed to apply for, prosecute or enforce any patent,
copyright or other protection relating to an Invention, whether because of my
physical or mental incapacity or for any other reason whatsoever, I hereby
irrevocably designate and appoint the Company and its duly authorized officers
and agents as my agent and
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attorney-in-fact, to act for and in my behalf and stead to execute and file any
such document and to do all other lawfully permitted acts to further the
prosecution and enforcement of patents, copyrights or similar protections with
the same legal force and effect as if executed by me.
6.0 No Conflicting Obligations.
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6.1 No Conflicting Agreements. The Company understands and agrees
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that during the Consulting Period I may be retained by other companies,
corporations, and/or commercial enterprises to perform consulting services. I
agree, however, that, during the Consulting Period, I will not, for my account
or as an officer, member, employee, consultant, representative or advisor of
another, engage in or contribute my knowledge to engineering, development,
manufacturing, research, business analysis or sales relating to any product,
equipment, process or material that relates in any way to the actual or
anticipated business or research and development of the Company for itself or
its affiliates without the written permission of the Company. The foregoing
provision, however, shall not prohibit me from engaging in any work at any time
after the Consulting Period, provided that Confidential Information will not be
involved in such work. The provisions of this Section 6.1 will not be construed
as limiting to any extent my continuing obligations under any other section of
this Agreement.
6.2 No Conflict With Prior Agreements. I represent and warrant to the
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Company and its affiliates that my retention by the Company and my performance
of my obligations under this Agreement do not and conflict with any prior
obligations to third parties, including others for whom I perform consulting or
other services. I represent and warrant that the Company has not asked me to
reveal, nor will I do so, any trade secrets or other proprietary or confidential
information that may have been gained by me during my previous employment which
I am under obligation not to disclose.
7.0 Termination. The Consulting Period may be terminated by me or the
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Company for any reason upon 10 days' prior written notice.
8.0 Legal Relationship. My relationship with the Company is that of
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an independent contractor and not as an employee or agent of the Company. I will
not be entitled to any benefits or compensation from the Company except as set
forth in this Agreement. I agree that I am responsible for direct payment of any
federal or state taxes on the compensation paid to me under this Agreement,
except to the extent the Company withholds such taxes. I understand that I am
not authorized to bind the Company or make any representations on its behalf in
any matter.
9.0 Assignment; Binding Upon Estate. The services to be rendered
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under this Agreement are personal in nature, and my rights and obligations under
this Agreement may not be assigned by me without the prior written consent of
the Company. Subject to this restriction, this Agreement shall be binding upon
me, my heirs, executors, administrators or legal representatives and shall inure
to the benefit of the Company and its successors and assigns.
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10.0 Governing Law. This Agreement shall be governed by the laws of
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the State of Colorado. Each article shall be independent and separable from all
other articles, and the invalidity of an article shall not affect the
enforceability of any of the other articles.
11.0 Remedies. I recognize that any violation of this Agreement by me
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would cause the Company irreparable damage for which other remedies would be
inadequate, and I therefore agree that the Company shall have the right to
obtain, in addition to all other remedies, such injunctive and other equitable
relief from a court of competent jurisdiction as may be necessary or appropriate
to prevent any violation of this Agreement.
12.0 Waiver. The Company's waiver or failure to enforce the terms of
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this Agreement or any similar agreement in one instance shall not constitute a
waiver of its rights hereunder with respect to other violations of this or any
other agreement.
13.0 Entire Agreement. This Agreement contains the entire Agreement
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between the Company and myself relating to the subject matter hereof, and
supersedes all prior and contemporaneous negotiations, correspondence,
understandings and agreements between us relating to the subject matter hereof.
This Agreement may be modified or amended only by mutual written consent of the
parties.
IN WITNESS WHEREOF, I have signed this Agreement effective as of the
date on the first page hereof.
ACCEPTED BY CONSULTANT
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
ACCEPTED FOR HESKA CORPORATION:
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chief Executive Officer
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EXHIBIT A
1. Name and Address of Consultant:
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Xx. Xxxx X. Xxxxxxxx
0000 Xxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
2. Term of Consulting Period:
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The Term of this Agreement is from DECEMBER 14, 1998 until terminated as
provided below or as provided in Section 7.0. In the event Consultant does
not provide any consulting services to the Company for a period of six (6)
consecutive months (as evidenced by his not giving any time reports to the
Company), this Agreement will expire on the last day of the seventh month
without notice. Upon termination of this Agreement, Consultant will be
paid all pay and expenses due hereunder accrued through the date of
termination.
3. Duties of Consultant:
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During the term of this Agreement, Consultant agrees to be available to
provide services to the Company on such projects as the Company may
reasonably request from time to time. The parties agree that after January
1, 1999 Consultant would not be expected to be available more than the
equivalent of ten (10) full days in any month nor would the Company be
obligated to pay for more than the equivalent of ten (10) full days in any
month. The Company is not required to use any minimum amount of services.
Consultant will report to the Chief Executive Officer or such other officer
as the Chief Executive Officer directs. Consultant will report his time to
the Company on a monthly basis. Consultant is not authorized to make any
commitments on the Company's behalf. Appendix 1 shows the projects that
Consultant expects to be undertaking. This Appendix may be amended or
supplemented from time to time as agreed to by the parties.
4. Consulting Fee:
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For Consultant's services, commitments and covenants hereunder, the Company
shall pay or cause to be paid to Consultant during the term of this
Agreement a fee of (a) U.S. $500.00 per full day (or $62.50 per hour for
less than full days) and (b) a number of shares of Company common stock,
par value $.001 per share, equal to $200 per full day (prorated for partial
days), rounded up to the nearest whole share. For purposes hereof, such
common stock shall be valued based upon the average closing price of such
common stock, as reported on the Nasdaq National Market (or such other
primary exchange on which such stock is then trading) during (and ending on
the last day of) the applicable month during which Consultant provides
consulting services. Consultant shall keep records of time, shall invoice
the Company monthly and shall be paid within 30 days of receipt of invoice.
The Company shall reimburse Consultant for all reasonable
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expenses incurred on behalf of the Company in connection with the
performance of services hereunder; upon presentation of appropriate
receipts. Invoices shall be sent to:
Heska Corporation
0000 Xxxxxxxx Xxxxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Contract Administrator
SIGNED:
Heska Corporation Consultant
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxxx
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Typed Name: Xxxxxx X. Xxxxxx Typed Name: Xxxx X. Xxxxxxxx
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Title: Chief Executive Officer SS#: ###-##-####
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Date: 02/16/99 Date: ___________________________
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