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EXHIBIT 10.18
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made and entered into as to this ___th
day of _________, 199__ ("Agreement"), by and between Heska Corporation (as
successor by name change to Heska Merger Corporation), a Delaware corporation
(the "Company"), and ________________________, (the "Indemnitee"), with
reference to the following facts:
A. The Company desires the benefits of having Indemnitee serve as an
officer and/or director secure in the knowledge that any expenses, liability
and/or losses incurred by him in his good faith service to the Company will be
borne by the Company or its successors and assigns;
B. Indemnitee is willing to serve in his position with the Company
only on the condition that he be indemnified for such expenses, liability
and/or losses;
C. The Company and Indemnitee recognize the increasing difficulty in
obtaining liability insurance for directors, officers and agents of a
corporation at reasonable cost;
D. The Company and Indemnitee recognize that there has been an
increase in litigation against corporate directors, officers and agents; and
E. The Company's Restated Certificate of Incorporation and Bylaws
allow the Company to indemnify its directors, officers and agents to the
maximum extent not prohibited under Delaware law.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 "Agent" shall mean any person who (a) is or was a
director, officer, employee or agent of the Company or a subsidiary of
the Company whether serving in such capacity or as a director, officer,
employee, agent, fiduciary or other official of another corporation,
joint venture, trust or other enterprise at the request of, for the
convenience of, or to represent the interests of the Company or a
subsidiary of the Company or (b) was a director, officer, employee or
agent of Heska Corporation, a California corporation and the predecessor
by merger to the Company (the "Predecessor Corporation") whether serving
in such capacity or as a director, officer, employee, agent, fiduciary
or other official of another corporation, joint venture, trust or other
enterprise at the request of, for the convenience of, or to represent
the interests of such Predecessor Corporation.
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1.2 "Change of Control" shall mean the occurrence of any of
the following events after the date of this Agreement:
(a) A change in the composition of the board of
directors of the Company (the "Board"), as a result of which
fewer than two-thirds of the incumbent directors are directors
who either (a) had been directors of the Company 24 months prior
to such change or (b) were elected, or nominated for election, to
the Board with the affirmative votes of at least a majority of
the directors who had been directors of the Company 24 months
prior to such change and who were still in office at the time of
the election or nomination; or
(b) Any "person" (as such term is used in sections
13(d) and 14(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), as amended) through the acquisition or
aggregation of securities is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing
20 percent or more of the combined voting power of the Company's
then outstanding securities ordinarily (and apart from rights
accruing under special circumstances) having the right to vote at
elections of directors (the "Capital Stock"); provided, however,
that any change in ownership of the Company's securities by any
person resulting solely from a reduction in the aggregate number
of outstanding shares of Capital Stock, and any decrease
thereafter in such person's ownership of securities, shall be
disregarded until such person increases in any manner, directly
or indirectly, such person's beneficial ownership of any
securities of the Company; and provided further that, with
respect to Charter Ventures and Charter Ventures II, L.P.,
Volendam Investeringen N.V. and Novartis AG (formerly known as
Ciba-Geigy Limited), each of whom, through the acquisition or
aggregation of securities, is or was a beneficial owner on the
date hereof, directly or indirectly, of securities of the Company
representing 20 percent or more of the Company's Capital Stock on
the date hereof, a "Change of Control" shall occur when any of
such "persons" is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing [25]
percent (rather than 20 percent) or more of the combined voting
power of the Company's Capital Stock.
1.3 "Disinterested Director" shall mean a director of the
Company who is not and was not a party to the Proceeding in respect of
which indemnification is being sought by Indemnitee.
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1.4 "Expenses" shall be broadly construed and shall include,
without limitation, (a) all direct and indirect costs incurred, paid or
accrued, (b) all attorneys' fees, retainers, court costs, transcripts,
fees of experts, witness fees, travel expenses, food and lodging
expenses while traveling, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service, freight or other
transportation fees and expenses, (c) all other disbursements and
out-of-pocket expenses, (d) amounts paid in settlement, to the extent
not prohibited by Delaware Law, and (e) reasonable compensation for time
spent by Indemnitee for which he is otherwise not compensated by the
Company or any third party, actually and reasonably incurred in
connection with or arising out of a Proceeding, including a Proceeding
by Indemnitee to establish or enforce a right to indemnification under
this Agreement, applicable law or otherwise.
1.5 "Independent Counsel" shall mean a law firm or a member of
a law firm that neither is presently nor in the past five years has been
retained to represent: (a) the Company, an affiliate of the Company or
Indemnitee in any matter material to either party or (b) any other party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not
include any person who, under the applicable standards of professional
conduct then prevailing would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee's right to indemnification under this Agreement.
1.6 "Liabilities" shall mean liabilities of any type
whatsoever, including, but not limited to, judgments or fines, ERISA or
other excise taxes and penalties, and amounts paid in settlement
(including all interest, assessments or other charges paid or payable in
connection with any of the foregoing) actually and reasonably incurred
by Indemnitee in connection with a Proceeding.
1.7 "Delaware Law" means the Delaware General Corporation Law
as amended and in effect from time to time or any successor or other
statutes of Delaware having similar import and effect.
1.8 "Proceeding" shall mean any pending, threatened or
completed action, hearing, suit or any other proceeding, whether civil,
criminal, arbitrative, administrative, investigative or any alternative
dispute resolution mechanism, including without limitation any such
Proceeding brought by or in the right of the Company.
2. Employment Rights and Duties. Subject to any other obligations
imposed on either of the parties by contract or by law, and with the
understanding that this Agreement is not intended to confer employment rights
on either party which they did not possess on the date of its execution,
Indemnitee agrees to serve as a director or officer so long as he is duly
appointed or elected and qualified in accordance with the applicable provisions
of the Restated Certificate of Incorporation (the "Certificate") and Bylaws
(the "Bylaws") of the Company or any subsidiary
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of the Company and until such time as he resigns or fails to stand for election
or until his employment terminates. Indemnitee may from time to time also
perform other services at the request, or for the convenience of, or otherwise
benefiting the Company. Indemnitee may at any time and for any reason resign or
be removed from such position (subject to any other contractual obligation or
other obligation imposed by operation of law), in which event the Company shall
have no obligation under this Agreement to continue Indemnitee in any such
position.
2.1 Directors' and Officers' Insurance.
(a) The Company hereby covenants and agrees that, so
long as Indemnitee shall continue to serve as a director or
officer of the Company and thereafter so long as Indemnitee shall
be subject to any possible Proceeding, the Company, subject to
Section 2(c), shall maintain directors' and officers' insurance
in full force and effect.
(b) In all policies of directors' and officers'
insurance, Indemnitee shall be named as an insured in such a
manner as to provide Indemnitee the same rights and benefits,
subject to the same limitations, as are accorded to the Company's
directors or officers most favorably insured by such policy.
(c) The Company shall have no obligation to maintain
directors' and officers' insurance if the Company determines in
good faith that such insurance is not reasonably available, the
premium costs for such insurance are disproportionate to the
amount of coverage provided, or the coverage provided by such
insurance is limited by exclusions so as to provide an
insufficient benefit.
3. Indemnification. The Company shall indemnify Indemnitee to the
fullest extent not prohibited by Delaware Law and the provisions of the
Certificate and Bylaws of the Company in effect on the date hereof and as the
Delaware Law, the Certificate and Bylaws may from time to time be amended (but,
in the case of any such amendment, only to the extent such amendment permits
the Company to provide broader indemnification rights than Delaware Law, the
Certificate and Bylaws permitted the Company to provide before such amendment).
The right to indemnification conferred in the Bylaws shall be presumed to have
been relied upon by Indemnitee in serving or continuing to serve the Company as
a director or officer and shall be enforceable as a contract right. Without in
any way diminishing the scope of the indemnification provided by the Bylaws and
this Section 3, the Company will indemnify Indemnitee if and whenever he is or
was a witness, party or is threatened to be made a witness or a party to any
Proceeding, by reason of the fact that he is or was an Agent or by reason of
anything done or not done, or alleged to have been done or not done, by him in
such capacity, against all Expenses and Liabilities actually and reasonably
incurred by Indemnitee or on his behalf in connection with the investigation,
defense, settlement or appeal of such Proceeding. In addition to, and not as
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a limitation of, the foregoing, the rights of indemnification of Indemnitee
provided under this Agreement shall include those rights set forth in Sections
4, 5 and 6 below.
4. Payment of Expenses.
4.1 All Expenses incurred by or on behalf of Indemnitee shall
be advanced by the Company to Indemnitee within 20 days after the
receipt by the Company of a written request for such advance which may
be made from time to time, whether prior to or after final disposition
of a Proceeding (unless there has been a final determination by a court
of competent jurisdiction that Indemnitee is not entitled to be
indemnified for such Expenses). Indemnitee's entitlement to advancement
of Expenses shall include those incurred in connection with any
Proceeding by Indemnitee seeking a determination, an adjudication or an
award in arbitration pursuant to this Agreement. The requests shall
reasonably evidence the Expenses incurred by Indemnitee in connection
therewith. Indemnitee hereby undertakes to repay the amounts advanced
if it shall ultimately be determined that Indemnitee is not entitled to
be indemnified pursuant to the terms of this Agreement.
4.2 Notwithstanding any other provision in this Agreement, to
the extent that Indemnitee has been successful on the merits or
otherwise in defense of any Proceeding, Indemnitee shall be indemnified
against all Expenses and Liabilities actually and reasonably incurred by
Indemnitee in connection therewith.
5. Procedure for Determination of Entitlement to Indemnification.
5.1 Whenever Indemnitee believes that he is entitled to
indemnification pursuant to this Agreement, Indemnitee shall submit a
written request for indemnification (the "Indemnification Request") to
the Company to the attention of the President with a copy to the
Secretary. This request shall include documentation or information
which is necessary for the determination of entitlement to
indemnification and which is reasonably available to Indemnitee.
Determination of Indemnitee's entitlement to indemnification shall be
made no later than 60 days after receipt of the Indemnification Request.
The President or the Secretary shall, promptly upon receipt of
Indemnitee's request for indemnification, advise the Board in writing
that Indemnitee has made such request for indemnification.
5.2 The Indemnification Request shall set forth Indemnitee's
selection of which of the following forums shall determine whether
Indemnitee is entitled to indemnification:
(1) A majority vote of Directors who are not parties to
the action with respect to which indemnification is sought, even
though less than a quorum.
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(2) A written opinion of an Independent Counsel
(provided no such Directors in (1) above or if such Directors in
(1) above so direct).
(3) A majority vote of the stockholders at a meeting at
which a quorum is present, with the shares owned by the person to
be indemnified not being entitled to vote thereon.
(4) The court in which the Proceeding is or was pending
upon application by Indemnitee.
The Company agrees to bear any and all costs and expenses incurred by
Indemnitee or the Company in connection with the determination of Indemnitee's
entitlement to indemnification by any of the above forums.
6. Presumptions and Effect of Certain Proceedings. No initial
finding by the Board, its counsel, Independent Counsel, arbitrators or the
stockholders shall be effective to deprive Indemnitee of the protection of this
indemnity, nor shall a court or other forum to which Indemnitee may apply for
enforcement of this indemnity give any weight to any such adverse finding in
deciding any issue before it. Upon making a request for indemnification,
Indemnitee shall be presumed to be entitled to indemnification under this
Agreement and the Company shall have the burden of proof to overcome that
presumption in reaching any contrary determination. The termination of any
Proceeding by judgment, order, settlement, arbitration award or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, (a)
adversely affect the rights of Indemnitee to indemnification except as
indemnification may be expressly prohibited under this Agreement, (b) create a
presumption that Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company or (c) with respect to any criminal action or proceeding, create a
presumption that Indemnitee had reasonable cause to believe that his conduct
was unlawful.
7. Remedies of Indemnitee in Cases of Determination not to Indemnify
or to Advance Expenses.
7.1 In the event that (a) an initial determination is made
that Indemnitee is not entitled to indemnification, (b) advances for
Expenses are not made when and as required by this Agreement, (c)
payment has not been timely made following a determination of
entitlement to indemnification pursuant to this Agreement or (d)
Indemnitee otherwise seeks enforcement of this Agreement, Indemnitee
shall be entitled to a final adjudication in an appropriate court of the
State of Delaware of his entitlement to such indemnification or advance.
Alternatively, Indemnitee at his option may seek an award in
arbitration. If the parties are unable to agree on an arbitrator, the
parties shall provide Judicial Arbitration & Mediation Services, Inc.
("JAMS") with a statement of the nature of the dispute and the desired
qualifications of the arbitrator. JAMS will then provide a list of
three available arbitrators. Each party may strike one of the
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names on the list, and the remaining person will serve as the
arbitrator. If both parties strike the same person, JAMS will select
the arbitrator from the other two names. The arbitration award shall be
made within 90 days following the demand for arbitration. Except as set
forth herein, the provisions of Delaware law shall apply to any such
arbitration. The Company shall not oppose Indemnitee's right to seek
any such adjudication or arbitration award. In any such proceeding or
arbitration Indemnitee shall be presumed to be entitled to
indemnification under this Agreement and the Company shall have the
burden of proof to overcome that presumption.
7.2 An initial determination, in whole or in part, that
Indemnitee is not entitled to indemnification shall create no
presumption in any judicial proceeding or arbitration that Indemnitee
has not met the applicable standard of conduct for, or is otherwise not
entitled to, indemnification.
7.3 If an initial determination is made or deemed to have been
made pursuant to the terms of this Agreement that Indemnitee is entitled
to indemnification, the Company shall be bound by such determination in
the absence of (a) a misrepresentation of a material fact by Indemnitee
in the request for indemnification or (b) a specific finding (which has
become final) by a court of competent jurisdiction that all or any part
of such indemnification is expressly prohibited by law.
7.4 The Company and Indemnitee agree herein that a monetary
remedy for breach of this Agreement, at some later date, will be
inadequate, impracticable and difficult of proof, and further agree that
such breach would cause Indemnitee irreparable harm. Accordingly, the
Company and Indemnitee agree that Indemnitee shall be entitled to
temporary and permanent injunctive relief to enforce this Agreement
without the necessity of proving actual damages or irreparable harm.
The Company and Indemnitee further agree that Indemnitee shall be
entitled to such injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, without the
necessity of posting bond or other undertaking in connection therewith.
Any such requirement of bond or undertaking is hereby waived by the
Company, and the Company acknowledges that in the absence of such a
waiver, a bond or undertaking may be required by the court.
7.5 The Company shall be precluded from asserting that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable. The Company shall stipulate in any such court or before
any such arbitrator that the Company is bound by all the provisions of
this Agreement and is precluded from making any assertion to the
contrary.
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7.6 Expenses incurred by Indemnitee in connection with his
request for indemnification under, seeking enforcement of or to recover
damages for breach of this Agreement shall be borne and advanced by the
Company.
8. Other Rights to Indemnification. Indemnitee's rights of
indemnification and advancement of expenses provided by this Agreement shall
not be deemed exclusive of any other rights to which Indemnitee may now or in
the future be entitled under applicable law, the Certificate, the Bylaws, an
employment agreement, vote of stockholders or Disinterested Directors,
insurance or other financial arrangements or otherwise.
9. Limitations on Indemnification. No indemnification pursuant to
Section 3 shall be paid by the Company nor shall Expenses be advanced pursuant
to Section 3:
9.1 Insurance. To the extent that Indemnitee is reimbursed
pursuant to such insurance as may exist for Indemnitee's benefit.
Notwithstanding the availability of such insurance, Indemnitee also may
claim indemnification from the Company pursuant to this Agreement by
assigning to the Company any claims under such insurance to the extent
Indemnitee is paid by the Company. Indemnitee shall reimburse the
Company for any sums he receives as indemnification from other sources
to the extent of any amount paid to him for that purpose by the Company;
9.2 Section 16(b). On account and to the extent of any wholly
or partially successful claim against Indemnitee for an accounting of
profits made from the purchase or sale by Indemnitee of securities of
the Company pursuant to the provisions of Section 16(b) or the
Securities Exchange Act of 1934, as amended, and amendments thereto or
similar provisions of any federal, state or local statutory law; or
9.3 Indemnitee's Proceedings. Except as otherwise provided in
this Agreement, in connection with all or any part of a Proceeding which
is initiated or maintained by or on behalf of Indemnitee, or any
Proceeding by Indemnitee against the Company or its directors, officers,
employees or other agents, unless (a) such indemnification is expressly
required to be made by Delaware Law, (b) the Proceeding was authorized
by a majority of the Disinterested Directors or (c) such indemnification
is provided by the Company, in its sole discretion, pursuant to the
powers vested in the Company under Delaware Law.
10. Duration and Scope of Agreement; Binding Effect. This Agreement
shall continue so long as Indemnitee shall be subject to any possible
Proceeding subject to indemnification by reason of the fact that he is or was
an Agent and shall be applicable to Proceedings commenced or continued after
execution of this Agreement, whether arising from acts or omissions occurring
before or after such execution. This Agreement shall be binding upon the
Company and its successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company)
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and shall inure to the benefit of Indemnitee and his spouse, assigns, heirs,
devisees, executors, administrators and other legal representatives.
11. Notice by Indemnitee and Defense of Claims. Indemnitee agrees
promptly to notify the Company in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter which may be subject to indemnification hereunder,
whether civil, criminal, arbitrative, administrative or investigative; but the
omission so to notify the Company will not relieve it from any liability which
it may have to Indemnitee if such omission does not actually prejudice the
Company's rights and, if such omission does prejudice the Company's rights, it
will relieve the Company from liability only to the extent of such prejudice;
nor will such omission relieve the Company from any liability which it may have
to Indemnitee otherwise than under this Agreement. With respect to any
Proceeding:
(a) The Company will be entitled to participate therein
at its own expense;
(b) Except as otherwise provided below, to the extent
that it may wish, the Company jointly with any other indemnifying
party similarly notified will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Indemnitee.
After notice from the Company to Indemnitee of its election so to
assume the defense thereof and the assumption of such defense,
the Company will not be liable to Indemnitee under this Agreement
for any attorney fees or costs subsequently incurred by
Indemnitee in connection with Indemnitee's defense except as
otherwise provided below. Indemnitee shall have the right to
employ his counsel in such Proceeding but the fees and expenses
of such counsel incurred after notice from the Company of its
assumption of the defense thereof and the assumption of such
defense shall be at the expense of Indemnitee unless (i) the
employment of counsel by Indemnitee has been authorized by the
Company, (ii) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and
Indemnitee in the conduct of the defense of such action or that
the Company's counsel may not be adequately representing
Indemnitee or (iii) the Company shall not in fact have employed
counsel to assume the defense of such action, in each of which
cases the fees and expenses of counsel shall be at the expense of
the Company; and
(c) The Company shall not be liable to indemnify
Indemnitee under this Agreement for any amounts paid in
settlement of any action or claim effected without its written
consent. The Company shall not settle any action or claim in any
manner without Indemnitee's written consent. Neither the
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Company nor Indemnitee will unreasonably withhold its or his
consent to any proposed settlement.
11.1 Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for
in this Agreement is held by a court of competent jurisdiction to be
unavailable to Indemnitee in whole or part, the Company shall, in such
an event, after taking into account, among other things, contributions
by other directors and officers of the Company pursuant to
indemnification agreements or otherwise, and, in the absence of personal
enrichment, acts of intentional fraud or dishonesty or criminal conduct
on the part of Indemnitee, contribute to the payment of Indemnitee's
losses to the extent that, after other contributions are taken into
account, such losses exceed: (i) in the case of a director of the
Company or any of its subsidiaries who is not an officer of the Company
or any of such subsidiaries, the amount of fees paid to the director for
serving as a director during the 12 months preceding the commencement of
the Proceeding; or (ii) in the case of a director of the Company or any
of its subsidiaries who is also an officer of the Company or any of such
subsidiaries, the amount set forth in clause (i) plus 5% of the
aggregate cash compensation paid to said director for service in such
office(s) during the 12 months preceding the commencement of the
Proceeding; or (iii) in the case of an officer of the Corporation or any
of its subsidiaries, 5% of the aggregate cash compensation paid to such
officer for service in such office(s) during the 12 months preceding the
commencement of such Proceeding.
12. Establishment of Trust. Upon a Change of Control of the Company,
the Company or its successor or assign shall establish a Trust (the "Trust")
for the benefit of the Indemnitee, the trustee (the "Trustee") of which shall
be chosen by the Company and which is reasonably acceptable to the Indemnitee.
Thereafter, from time to time, upon receipt of a written request from
Indemnitee, the Company shall fund the Trust in amounts sufficient to satisfy
any and all Liabilities and Expenses reasonably anticipated at the time of such
request for which the Company may indemnify Indemnitee hereunder. The amount
or amounts to be deposited in the Trust pursuant to the foregoing funding
obligation shall be determined by mutual agreement of the Indemnitee and the
Company or, if the Company and the Indemnitee are unable to reach such an
agreement, by Independent Counsel selected jointly by the Company and the
Indemnitee. The terms of the Trust shall provide that except upon the consent
of the Indemnitee and the Company, (i) the Trust shall not be revoked or the
principal thereof invaded, without the written consent of the Indemnitee, (ii)
the Trustee shall advance to the Indemnitee, within 20 days of a request by the
Indemnitee, any and all Expenses, the Indemnitee hereby agreeing to reimburse
the Trustee of the Trust for all Expenses so advanced if a final determination
is made by a court in a final adjudication from which there is no further right
of appeal that the Indemnitee is not entitled to be indemnified under this
Agreement, (iii) the Trust shall continue to be funded by the Company in
accordance with the funding obligations set forth in this Section, (iv) the
Trustee shall promptly pay to the Indemnitee any amounts to which the
Indemnitee shall be entitled pursuant to this Agreement, and (v) all unexpended
funds in the Trust shall revert to the Company upon a final determination by
Independent Counsel selected by Indemnitee or a court
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of competent jurisdiction that Indemnitee has been fully indemnified with
respect to the Proceeding giving rise to the funding of the Trust under the
terms of this Agreement.
13. Miscellaneous Provisions.
13.1 Severability; Partial Indemnity. If any provision or
provisions of this Agreement (or any portion thereof) shall be held by a
court of competent jurisdiction to be invalid, illegal or unenforceable
for any reason whatever: (a) such provision shall be limited or
modified in its application to the minimum extent necessary to avoid the
invalidity, illegality or unenforceability of such provision; (b) the
validity, legality and enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired thereby; and
(c) to the fullest extent possible, the provisions of this Agreement
shall be construed so as to give effect to the intent manifested by the
provision (or portion thereof) held invalid, illegal or unenforceable.
If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any Expenses or
Liabilities of any type whatsoever incurred by him in the investigation,
defense, settlement or appeal of a Proceeding but not entitled to all of
the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for such total amount except as to the portion thereof for
which it has been determined pursuant to Section 5 hereof that
Indemnitee is not entitled.
13.2 Identical Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be deemed
to be an original but all of which together shall constitute one and the
same Agreement. Only one such counterpart signed by the party against
whom enforceability is sought needs to be produced to evidence the
existence of this Agreement.
13.3 Interpretation of Agreement. It is understood that the
parties hereto intend this Agreement to be interpreted and enforced so
as to provide indemnification to Indemnitee to the fullest extent not
now or hereafter prohibited by law.
13.4 Headings. The headings of the Sections and paragraphs of
this Agreement are inserted for convenience only and shall not be deemed
to constitute part of this Agreement or to affect the construction
thereof.
13.5 Pronouns. Use of the masculine pronoun shall be deemed to
include use of the feminine pronoun where appropriate.
13.6 Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing
by both of the parties to this Agreement. No waiver of any provision of
this Agreement shall be deemed to constitute a waiver of any of the
provisions hereof (whether
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or not similar) nor shall such waiver constitute a continuing waiver.
No waiver of any provision of this Agreement shall be effective unless
executed in writing.
13.7 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have
been duly given if (i) delivered by hand and receipted for by the party
to whom said notice or other communication shall have been directed or
(ii) mailed by certified or registered mail with postage prepaid, on the
third business day after the date on which it is so mailed:
(a) If to Indemnitee, to:
[Name of Director/Officer]
c/o HESKA CORPORATION
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (____) __________
(b) If to the Company to:
HESKA CORPORATION
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President and Chief Executive Officer
Telephone: (000) 000-0000
Telefax: (000) 000-0000
with a copy to:
HESKA CORPORATION
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Secretary
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other address as may have been furnished to Indemnitee by the
Company or to the Company by Indemnitee, as the case may be.
13.8 Governing Law. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws
of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within Delaware.
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13.9 Consent to Jurisdiction. The Company and Indemnitee each
hereby irrevocably consent to the jurisdiction of the courts of the
State of Delaware for all purposes in connection with any action or
proceeding which arises out of or relates to this agreement and agree
that any action instituted under this agreement shall be brought only in
the state courts of the State of Delaware.
13.10 Entire Agreement. This Agreement represents the entire
agreement between the parties hereto, and there are no other agreements,
contracts or understanding between the parties hereto with respect to
the subject matter of this Agreement, except as specifically referred to
herein or as provided in Sections 8 and 2.1 hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
HESKA CORPORATION
By:
--------------------------------
Name:
Title
[Name of Indemnitee]
-------------------------------------
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