EXHIBIT 10.31
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 President and Chief Executive
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Officer of the Company from the date of this Agreement through December 31, 1998
and Chairman of the Board of Directors of the Company 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; provided, however, that my service as President,
Chief Executive Officer, Chairman of the Board of Directors and as a director of
the Company shall be subject in all respects to the bylaws and the certificate
of incorporation of the Company and by applicable law (including the Delaware
General Corporation Law), and nothing herein is intended to, nor does it, alter
the provisions or requirements of such bylaws, certificate of incorporation or
law, as the same may be amended from time to time. 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
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the 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
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Company 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
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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 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
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the 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
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the Company for any reason upon 10 days' prior written notice; and may be
terminated immediately for cause upon a breach of this Agreement. My service as
President, Chief Executive Officer, Chairman and as a director of the Company
may be terminated at any time pursuant to the bylaws and/or the certificate of
incorporation of the Company or pursuant to applicable law.
8.0 Legal Relationship. My consulting relationship with the Company
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is that of 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
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compensation paid to me under this Agreement, except to the extent the Company
withholds such taxes.
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.
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.
14.0 Fiduciary Obligations. Nothing in this Agreement is intended to,
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nor shall it, limit or in any way alter the fiduciary or other legal obligations
that I may have to the Company and its shareholders as a director of the
Company, and in the event of a conflict between my duties or obligations
hereunder and my fiduciary or other legal duties or obligations, my fiduciary
and legal duties and obligations shall govern and control.
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IN WITNESS WHEREOF, I have signed this Agreement effective as of the
date on the first page hereof.
ACCEPTED BY CONSULTANT
/s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
ACCEPTED FOR HESKA CORPORATION:
By: /s/ Xxxxxx X. Xxxxxx
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Name: /s/ 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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Xxxx X. Xxxxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
2. Term of Consulting Period:
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The Term of this Agreement is from December 14, 1998 until the earlier of
April 30, 2000 or the annual meeting of shareholders of the Company held in
2000, unless earlier terminated as provided below or as provided in Section
7.0. Unless earlier removed as provided herein, Consultant agrees to act in
the roles of President and Chief Executive Officer until December 31, 1998,
and Consultant agrees to act in the role of Chairman of the Board of
Directors until the earlier of April 30, 2000 or the annual meeting of
shareholders of the Company held in 2000. Termination of my role as
President, Chief Executive Officer, Chairman or a director alone will not
constitute a termination of this Agreement or of my service as a
consultant. 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 provide services to
the Company on such projects appropriate for a President, Chief Executive
Officer and Chairman of the Board, as applicable, as the Company may
request from time to time. The parties agree that after January 1, 1999
Consultant will not be expected to be available more than the equivalent of
ten full days in any month through June 30, 1999 or more than five full
days in any month thereafter. The Company is not required to use any
minimum amount of services. Through December 31, 1998, Consultant will
report to the Board of Directors. Beginning January 1, 1999, Consultant
will report to the Chief Executive Officer or such other officer as he may
direct.
4. Consulting Fee:
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For Consultant's services, commitments and covenants hereunder: (a) the
Company will pay Consultant $30,000, to be paid in two equal installments
of $15,000 each on March 31, 1999 and June 30, 1999; and (b) the Company
will, unless this Agreement is terminated by Consultant under Section 7.0
or by the Company for cause under Section 7.0, forgive all outstanding
indebtedness of principal and interest under the promissory note delivered
to Company by Consultant in the original principal amount of $61,950, such
forgiveness to be effective on the earliest of (i) April 30, 2000, (ii) the
annual meeting of stockholders of the Company held in 2000, or (iii) the
date on which the Company terminates this Agreement without cause under
Section 7.0 or Consultant
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terminates it for cause under Section 7.0. Consultant will also be
reimbursed for his reasonable out-of-pocket expenses incurred on behalf of
the Company in connection with the performance of consulting services
hereunder, upon presentation of appropriate receipts and otherwise in
compliance with the Company's expense policies from time to time.
Consultant shall invoice the Company for such expenses and shall be paid
within 30 days of receipt of invoice. Invoices shall be sent to:
Heska Corporation
0000 Xxxxxxxx Xxxxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
SIGNED:
Heska Corporation Consultant
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxxxx
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Typed Name: Xxxxxx X. Xxxxxx Typed Name: Xxxx X. Xxxxxxxxx
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Title: Chief Executive Officer SS#: ###-##-####
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Date: 02/16/99
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