EXHIBIT 10.28
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into by and between
Heska Corporation, a Delaware corporation with its principal office at 0000
Xxxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxx 00000 ("Company") and Xxx Xxxxxxxx
("Employee"), effective as of December 1, 1998.
W I T N E S S E T H:
WHEREAS Company desires to employ Employee to act as its Executive
---------
Vice President and Chief Financial Officer, in an at-will capacity; and
------------------------------------------
WHEREAS Employee wishes to act as Company's Executive Vice President
------------------------
and Chief Financial Officer as an employee in an at-will capacity;
---------------------------
N O W, T H E R E F O R E, in consideration of the mutual covenants and
warranties contained herein, the parties agree as follows:
1. Employment. Company hereby employs Employee as its Executive Vice
---------- --------------
President and Chief Financial Officer, and Employee hereby accepts such
-------------------------------------
employment.
2. Duties and Responsibilities. Employee shall serve as Executive
--------------------------- ---------
Vice President and Chief Financial Officer of Company, with such duties and
------------------------------------------
responsibilities as may be assigned to him from time to time by the Board of
Directors of Company, and with such on-going daily duties and responsibilities
as are typically entailed in such position. 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, compensation at the rate of $180,000 per
--------
year, payable in accordance with the usual and customary payroll practices of
Company. 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
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.
-----------
(a) At-Will. This is an at-will employment agreement and does
-------
not bind either of the parties to any specific term or duration.
(i) Employee is free to terminate employment with
Company at any time, for any reason, or for no reason.
(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.
(b) Severance Pay.
-------------
(i) Upon involuntary termination of his employment as
defined in subsection (ii) below, Employee will be entitled to severance pay as
provided below. Upon request by Company, Employee will sign a release of claims
against Company and its affiliates as a condition to receiving severance pay.
Severance pay shall be payable only upon any involuntary termination of
Employee's employment as defined in subsection (ii) below and in all other
termination circumstances Employee shall only receive pay and benefits which
Employee earned as of the date of termination.
(ii) "Involuntary termination" shall mean any
termination of Employee's employment by Company, other than
(A) any termination caused by Employee's
transfer to any company affiliated with Company;
(B) any termination by Company or Employee
following Employee's refusal to accept a reasonable transfer to a position
with comparable responsibility and salary with any affiliated company that
does not involve commuting more than 50 miles each way from his present
home;
(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;
(D) Company shall discontinue its business
(for the purpose of this provision, a merger, acquisition or sale of
Company, or a sale of substantially all of the assets of the company, where
Employee is offered or continues in employment with the surviving entity in
a position with comparable pay, benefits, title and responsibility, shall
be deemed to be a discontinuance of the business of Company, unless the
surviving company refuses to continue to be bound by the terms of this
Employment Agreement);
(E) Employee shall commit any material breach
of his obligations under this Agreement;
-2-
(F) Employee shall commit any material breach
of any material fiduciary duty to Company;
(G) 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 to be detrimental to Company's image or interests;
(H) Employee shall commit repeated
insubordination or refusal to comply with any reasonable request of the
Board of Directors of Company relating to the scope or performance of
Employee's duties;
(I) 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
(J) Employee shall conduct himself in a manner
which, in the good faith and reasonable determination of the Board of
Directors, demonstrates Employee's substantial unfitness to serve.
(iii) In the event that severance pay is due to Employee
under Section 6(b)(i) above as a result of a termination of his employment
within three years of the date of this Agreement, Employee will be paid one (1)
year's salary in twelve equal monthly installments (subject to all applicable
tax and other deductions), with the first such installment due 15 days after the
date of such termination and with the following eleven installments due monthly
thereafter on Company's regular payroll dates.
(iv) In the event that severance pay is due to Employee
under Section 6(b)(i) as a result of a termination of his employment three or
more years after the date of this Agreement, Employee will be paid six (6)
months' salary in six equal monthly installments (subject to all applicable tax
and other deductions), with the first such installment due 15 days after the
date of such termination and with the following five installments due monthly
thereafter on Company's regular payroll dates.
7. Proprietary Information. Employee agrees that he will promptly
-----------------------
execute Company's standard employee proprietary information and assignment of
inventions agreement.
8. Attorneys' Fees. If any legal action arises under this Agreement
---------------
or by reason of any asserted breach of it, 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 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, and
-3-
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 a party 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 writing
signed by both parties. 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.
HESKA CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------
Its: President
--------------------------
/s/ Xxx Xxxxxxxx
------------------------------
Xxx Xxxxxxxx
-4-
