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Exhibit 10.1
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (the
“Agreement”) is made between Joseph H. Ritter, D.V.M.
(the “Employee”) and Heska Corporation (the
“Company”) as of the 4th day of April, 2008. The
Employee and the Company are referred to collectively as the
“Parties” and individually as a
“Party.”
WHEREAS, on or about May 1, 2004, the Employee and
the Company entered into an Employment Agreement (the
“Employment Agreement”);
WHEREAS, the Employee now wishes to voluntarily
terminate his employment with the Company effective as of April 4,
2008 (the “Termination Date”);
WHEREAS, the Employee and the Company wish to enter
into a consulting agreement to be effective as of April 5, 2008
attached hereto as Exhibit A
(the “Consulting Agreement”);
WHEREAS, the Employee and the Company entered into
an Employee Confidential Information and Inventions Agreement dated
September 30, 2002 (the “Confidentiality
Agreement”);
WHEREAS, the Employee and the Company entered into
several stock option agreements (the “Stock Option
Agreements”), granting the Employee the option to purchase
shares of the Company’s common stock (collectively, the
“Options”) subject to the terms and conditions of the
Company’s 1997 and 2003 Stock Plans and Stock Option
Agreements. A schedule of the Employee’s Options is attached
hereto as Exhibit B ; and
WHEREAS, the Parties wish to enter into this
Agreement to resolve fully and finally any potential disputes
regarding the Employee’s employment with the
Company.
NOW THEREFORE, in consideration of the mutual
promises and undertakings contained herein, the Parties to this
Agreement agree as follows:
1.
Termination Date .
Employee’s last date of employment with the Company is on the
Termination Date. This Agreement will be effective on the
expiration of the revocation period set forth in Paragraph 7(e)
below (the “Effective Date”).
2.
Separation Terms .
a.
Final Payments .
Pursuant to the Employment Agreement, the Employee is not entitled
to any severance pay and shall receive only the pay which the
Employee earned as of the Termination Date. Upon the Termination
Date, the Employee will be paid all accrued, unused vacation. The
Employee acknowledges and agrees that, by this payment, he will
have received from the Company the employment benefits,
compensation, wages and vacation pay owing to him from the Company.
It is understood and agreed that the Company will reimburse the
Employee for any travel expenses incurred by the Employee through
the Termination Date. The Employee acknowledges that all
outstanding travel expenses will be submitted for payment within
forty-five (45) days of the Termination Date. The Company and
Employee acknowledge that the Employee does not remain eligible to
participate in the 2008 Management Incentive Plan.
b.
No Benefits .
Employee’s health insurance benefits will cease on the last
day of the month of the Termination Date, subject to the
Employee’s right to continue his health insurance under
COBRA. The Employee’s participation in all other benefits and
incidents of employment will cease on the Termination Date. The
Employee will cease accruing benefits, including but not limited
to, vacation time and paid time off as of the Termination Date. The
vesting of Options is described in Paragraph 2(c) below.
c.
Vesting/Expiration of Stock Options/Restricted
Stock. Vesting of all non-vested stock
options will cease upon the Termination Date. The Employee’s
option to exercise such vested Options will be subject to the terms
of the Consulting Agreement.
3.
Return of Company Property . Employee agrees to return all Company property to the Company
no later than ten business days following the final day of the Term
of the Consulting Agreement. This property includes, but is not
limited to, Company documents, materials, laptops, cell phone,
keys, credit cards, computer disks and badges.
4.
General Release .
a. Employee,
for himself, and for his affiliates, successors, heirs, subrogees,
assigns, principals, agents, partners, employees, associates,
attorneys and representatives voluntarily, knowingly and
intentionally releases and discharges the Company and its
predecessors, successors, parents, subsidiaries, affiliates, and
assigns and each of their respective officers, directors,
principals, shareholders, agents, attorneys, board members, and
employees from any and all claims, actions, liabilities, demands,
rights, damages, costs, expenses, and attorneys’ fees
(including, but not limited to, any claim of entitlement for
attorneys’ fees under any contract, statute, or rule of law
allowing a prevailing party or plaintiff to recover
attorneys’ fees), of every kind and description from the
beginning of time through the Termination Date, except rights
created by this Agreement, Worker’s Compensation claims, or
those that cannot be released by law (the “Released
Claims”).
b. The
Released Claims include but are not limited to those which arise
out of, relate to, or are based upon: (i) the Employee’s
employment with the Company or the termination thereof; (ii)
statements, acts or omissions by the Parties whether in their
individual or representative capacities, (iii) express or implied
agreements between the Parties, (except as provided herein); (iv)
claims under any severance, stock, or stock option agreement or
plan or relating to or arising from the Employee’s right to
purchase or actual purchase, including, without limitation, any
claims for; fraud, misrepresentation, breach of fiduciary duty,
breach of duty under applicable state corporate law, and securities
fraud under any state or federal law (v) all federal, state, and
municipal statutes, ordinances, and regulations, including, but not
limited to, claims of discrimination based on race, age, sex,
disability, whistleblower status, public policy, or any other
characteristic of the Employee under the Age Discrimination in
Employment Act, the Older Worker’s Benefit Protection Act,
the Americans with Disabilities Act, the Fair Labor Standards Act,
the Equal Pay Act, Title VII of the Civil Rights Act of 1964 (as
amended), the Employee Retirement Income Security Act of 1974, the
Rehabilitation Act of 1973, the Worker Adjustment and Retraining
Notification Act, or any other federal, state, or municipal law
prohibiting discrimination or termination for any reason; (vi)
state and federal common law; and (vii) any claim which was or
could have been raised by the Employee. The Released Claims
include, but are not limited to, claims related to the negotiation
and execution of this Agreement, including but not limited to
claims that this Agreement was fraudulently induced.
Because Employee is over age 40, he has special
rights under a federal law known as the Age Discrimination in
Employment Act of 1967, as amended by the Older Workers Protection
Act. Under this law, Employee has a right to be free from age
discrimination in all aspects of his employment relationship.
Employee understands that he is giving up the right to sue the
Company for age discrimination by signing this
Agreement.
c. To be
clear, the General Release does not apply to any ongoing
commitments under this Agreement or under the Consulting
Agreement.
5.
Unknown Facts . This
Agreement includes claims of every nature and kind, known or
unknown, suspected or unsuspected as of the Termination Date. The
Employee hereby acknowledges that he may hereafter discover facts
different from, or in addition to, those which he now knows to be
or believes to be true with respect to this Agreement, and he
agrees that this Agreement and the releases contained herein shall
be and remain effective in all respects, notwithstanding such
different or additional facts or the discovery thereof.
6.
No Admission of Liability . The Parties agree that nothing contained herein, and no
action taken by any Party hereto with regard to this Agreement,
shall be construed as an admission by any Party of liability or of
any fact that might give rise to liability for any purpose
whatsoever.
7.
Representations and Warranties
. Employee represents and warrants as
follows:
a. he has
read this Agreement and agrees to the conditions and obligations
set forth in it;
b. he has
been advised to consult with an attorney prior to executing the
agreement and voluntarily executes this Agreement after having had
full opportunity to consult with counsel and without being
pressured or influenced by any statement or representation or
omission of any person acting on behalf of the Company, including
without limitation its attorneys, officers, shareholders,
directors, employees and agents;
c. he has
had at least twenty-one (21) days in which to consider the terms of
this Agreement. In the event that the Employee executes this
Agreement in less time, it is with the full understanding that he
had the full twenty-one (21) days if he so desired and that he was
not pressured by the Company or any of its representatives or
agents to take less time to consider the Agreement. In such event,
the Employee expressly intends such execution to be a waiver of any
right he had to review the Agreement for a full twenty-one (21)
days;
d. he has
no knowledge of the existence of any lawsuit, charge, or proceeding
against the Company or any of its officers, directors, board
members, committee members, employees, successors, affiliates, or
agents arising out of or otherwise connected with any of the
matters herein released. In the event that any such lawsuit,
charge, or proceeding has been filed, the Employee immediately will
take all actions necessary to withdraw or terminate that lawsuit,
charge, or proceeding;
e. he has
been informed and understands that (i) to the extent that this
Agreement waives or releases any claims he might have under the Age
Discrimination in Employment Act, he may revoke his waiver and
release within seven (7) calendar days of his execution of this
Agreement, and (ii) any such revocation must be in writing and hand
delivered to the Company, or, if sent by mail, postmarked within
the seven-day period, sent by certified mail, return receipt
requested and addressed as follows:
Heska Corporation
Attn: Mr. John Flanders
Vice President and General Counsel
3760 Rocky Mountain Avenue
Loveland, CO 80538
f. he has
full and complete legal capacity to enter into this
Agreement.
8.
Severability . If any
provision of this Agreement is held illegal, invalid, or
unenforceable, such holding shall not affect any other provisions
hereof. In the event any provision is held illegal, invalid or
unenforceable, such provision shall be limited so as to effect the
intent of the Parties to the fullest extent permitted by applicable
law. Any claim by the Employee against the Company shall not
constitute a defense to enforcement by the Company of this
Agreement.
9.
Enforcement . The
release contained herein does not release any claims for
enforcement of the terms, conditions or warranties contained in
this Agreement. The Parties
shall be free to pursue any remedies available to
them to enforce this Agreement subject to Paragraph 15
below.
10.
Entire Agreement . With
the exception only of the Employee’s obligations under the
Confidentiality Agreement, the Consulting Agreement following its
execution and the Stock Option Agreements, this Agreement contains
the entire agreement between the Parties. Other than the agreements
set forth in the preceding sentence, this Agreement supersedes and
modifies any and all agreements (except those described in the
first sentence of this Paragraph), prior and contemporaneous
negotiations, correspondence and understandings. This Agreement
cannot be modified except in writing signed by all
Parties.
11.
Counterparts . This
Agreement may
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