Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
(“Agreement”) is entered into by and between Heska Corporation, a Delaware
corporation with its principal office at 0000 Xxxxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxx
00000 (“Company”) and Xxxxxx X. Xxxxxx(“Employee”), effective as of
May 1, 2004.
W I T N E S S E T H:
Whereas Company desires to
employ Employee to act as its Vice President of Marketing, Sales and International Business
in an at-will capacity; and
Whereas Employee
wishes to act as Company's Vice President of Marketing, Sales and International
Business as an employee in an at-will capacity;
NOW, THEREFORE, in consideration of
the mutual covenants and warranties contained herein, the parties agree as follows:
1.
Employment. Company hereby employs Employee as its Vice President of
Marketing, Sales and International Business,
and Employee hereby accepts such employment.
2.
Duties and Responsibilities. Employee shall serve as Vice President of
Marketing, Sales and International Business of Company, with such
duties and responsibilities as may be assigned to
him from time to time by his superior officers (the “Senior
Management”) and/or the Board of Directors of Company, and with such
on-going daily duties and responsibilities as are typically entailed in such
position. The Senior Management and/or the Board of Directors shall be entitled
to change such title, duties and responsibilities from time to time, in their
discretion. Employee shall devote his full time and energies to such duties.
3.
Compensation. Company shall pay Employee, as compensation for services
rendered under this Agreement, a “base salary” per year, the amount of
which shall initially be $190,000.00, which may be increased from time-to-time by
the Company in its discretion. If for any reason during any given year, Employee
does not work an entire year, other than normal vacations as provided hereunder,
the compensation will be prorated to compensate only for the actual time worked.
4.
Expenses. Company shall reimburse Employee for his reasonable
out-of-pocket expenses incurred in connection with the business of Company,
including travel away from the Company’s facilities, upon presentation of
appropriate written receipts and reports and subject to the customary practices
and limitations of Company.
5.
Employee Benefits. During the term of his employment hereunder, Employee
shall be entitled to receive the same benefits that the Board of Directors
establishes generally for the officers and other employees of Company. These may
include, from time to time, medical insurance, life insurance, paid vacation
time and medical disability insurance.
6.
Termination.
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(a)
At-Will. This is an at-will employment agreement and does not bind
either of the parties to any specific term or duration. |
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(i)
Employee is free to terminate employment with Company at any time, for any
reason, or for no reason, for cause or without cause, and without any prior notice. |
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(ii)
Company is free to terminate the employment of Employee at
any time, for any reason or for no reason, for cause or without cause, and without any prior notice. |
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(b)
Termination “Without Cause” –
Separation Benefits. |
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(i)
Upon “involuntary termination” of his employment with Heska
Corporation for other than a “change of control”, as defined in
Paragraph 6(c)(iii) below, Employee will be entitled to severance pay as
provided in Paragraph 6(b)(ii) below, unless he is terminated for
“cause”, as defined in Paragraph 6(d)(ii) below. Employee’s
entitlement to any severance pay is dependent on his execution of a complete
release of claims against Company and its affiliates. |
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(ii)
In the event that severance pay is due to Employee as a result of the
“involuntary termination” of his employment “without cause”,
Employee will be paid six months’ “base salary” at the rate in
effect immediately prior to the termination in six equal monthly installments
(subject to all applicable taxes and other deductions), with the first such
installment due 15 days after the date of such termination and with the
following five installments due no later than monthly thereafter on
Company’s then regular payroll dates. The Company will also pay the
employer contribution and administrative cost of the health insurance premiums
for the medical and dental insurance coverage previously maintained by the
Company for Employee and his eligible dependents during this six month period or
until Employee is provided or obtains medical and dental insurance coverage by
another employer or entity, whichever first occurs. |
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(c)
Change of Control – Separation Benefits. |
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(i)
Upon “involuntary termination” of his employment due to a
“change of control” of Heska Corporation, Employee will be entitled to
severance pay as provided in Paragraph 6(c)(iv) below, unless he is terminated
for “cause”, as defined in Paragraph 6(d)(ii) below. Employee’s
entitlement to any severance pay is dependent on his execution of a complete
release of claims against Company and its affiliates. |
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(ii)
For the purposes of this Employment Agreement, “change of control” is
defined as the merger, acquisition or sale of Company or all or substantially
all of its assets with, into, or to a previously unaffiliated third party
entity, other than a merger in which the shareholders of Company prior to the
merger, by reason of such shareholdings, own more than 50% of the outstanding
shares of the company after the merger. |
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(iii)
The parties agree that for the purposes of this Employment Agreement, an
“involuntary termination” due to a “change of control” will
be deemed to have occurred when Employee is no longer employed by the
Company’s successor following a “change of control” because the
Employee’s position is eliminated within nine (9) months of the
“change of control” or when Employee’s job responsibilities are
materially and negatively changed within nine (9) months of the “change of
control”, and Employee elects to resign. |
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(iv)
In the event that severance pay is due to Employee as a result of the
“involuntary termination” of his employment without “cause”
due to a “change of control”, Employee will be paid one (1)
year’s “base salary” at the rate in effect immediately prior to
the termination in twelve equal monthly installments (subject to all applicable
taxes and other deductions), with the first such installment due 15 days after
the date of such termination and with the following eleven installments due no
later than monthly thereafter on Company’s then regular payroll dates. The
Company will also pay the employer contribution and administrative cost of the
health insurance premiums for the medical and dental insurance coverage
previously maintained by the Company for Employee and his eligible
dependents during this one year period or until Employee is provided or obtains
medical and dental insurance coverage by another employer or entity, whichever
first occurs. |
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(d)
Termination “For Cause”; Voluntary Resignation. |
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(i)
If Company or its successor terminates Employee for “cause” or if
Employee’s employment terminates for any reason other than a termination by
the Company “without cause” (as set forth in paragraph 6(b)) or due to
a “change of control” (as set forth in Paragraph 6(c)), Employee will
not be entitled to any severance pay and shall only receive pay and benefits
which Employee earned as of the date of termination. |
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(ii)
The parties agree that for the purposes of this Employment Agreement, a
termination for “cause” will be deemed to have occurred when Company
terminates Employee’s employment because of the occurrence of any of the
following events: |
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(A)
Employee shall refuse to accept a change or modification of his title, duties
or responsibilities by senior management and/or the Board of Directors; |
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(B)
Employee shall refuse to accept a reasonable transfer not arising from a change
in control to a position with comparable responsibility and salary with any
affiliated company that does not involve commuting more than fifty (50) miles
each way from the Company headquarters in the Fort Xxxxxxx, Colorado area; |
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(C)
Employee shall die, be adjudicated to be mentally incompetent or become
mentally or physically disabled to such an extent that Employee is unable to
perform his duties under this Employment Agreement for a period of ninety (90)
consecutive days; |
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(D)
Employee shall commit any breach of his obligations under this Agreement; |
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(E)
Employee shall commit any breach of any material fiduciary duty to Company; |
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(F)
Employee shall be convicted of, or enter a plea of nolo contendere to,
any crime involving moral turpitude or dishonesty, whether a felony or
misdemeanor, or any crime which reflects so negatively on Company as to be
detrimental to Company’s image or interests; |
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(G)
Employee shall commit insubordination or refusal to comply with any request of
his supervisor or the Board of Directors of Company relating to the scope or
performance of Employee’s duties; |
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(H)
Employee shall possess any illegal drug on Company premises or Employee shall
be under the influence of illegal drugs or abusing prescription drugs or alcohol
while on Company business or on Company premises; or |
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(I)
Employee shall conduct himself in a manner that, in the good faith and
reasonable determination of the Senior Management and/or the Board of Directors,
demonstrates Employee’s unfitness to serve. |
7.
Proprietary Information. Employee agrees that, if he has not already done
so, he will promptly execute Company’s standard employee proprietary
information and assignment of inventions agreement.
8.
Arbitration; Attorneys’ Fees. If any dispute arises under this
Agreement or by reason of any asserted breach of it, or from the Parties’
employment relationship or any other relationship, the Company, at its sole
discretion, may elect to have the dispute resolved through arbitration, so long
as all of the arbitrator’s fees and expenses are borne exclusively by the
Company. The arbitration shall be conducted pursuant to the rules of the
American Arbitration association, with the arbitrator being selected by mutual
agreement of the parties. Regardless of whether the dispute is resolved through
arbitration or litigation, the prevailing party shall be entitled to recover all
costs and expenses, including reasonable attorneys’ fees, incurred in
enforcing or attempting to enforce any of the terms, covenants or conditions,
including costs incurred prior to commencement of arbitration or legal action,
and all costs and expenses, including reasonable attorneys’ fees, incurred
in any appeal from an action brought to enforce any of the terms, covenants or
conditions. For purposes of this section, “prevailing party” includes,
without limitation, a party who agrees to dismiss a suit or proceeding upon the
other’s payment or performance of substantially the relief sought.
9.
Notices. Any notice to be given to Company under the terms of this
Agreement shall be addressed to Company at the address of its principal place of
business. Any notice to be given to Employee shall be addressed to him at his
home address last shown on the records of Company, or to such other address as
Employee shall have given notice of hereunder.
10.
Miscellaneous. This Agreement shall be governed by the laws of the State
of Colorado as applied to contracts between residents of that state to be
performed wholly within that state. This Agreement is the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
understandings and agreements. This Agreement may be modified only by a written
document signed by both parties, except that the Company, in its discretion, may
modify any policies, guidelines or other directives, none of which shall
constitute a binding agreement or impose any contractual obligations. This
Agreement shall be binding upon and shall inure to the benefit of the successors
and assigns of the parties.
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement the day and year hereinabove written.
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HESKA CORPORATION
By: /S/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
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EMPLOYEE
Name: /S/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
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