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EXHIBIT 10.37
HESKA CORPORATION
CONSULTANT SERVICES AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made between SEWARD PHARM, LLC ("Consultant") and HESKA
CORPORATION and its affiliates, (the "Company"), as of the 1st day of December,
1999. In consideration of mutual promises, it is hereby agreed as follows:
ARTICLE I. CONSULTING
Consultant agrees to be a consultant to the Company for the period
commencing on December 1, 1999, and concluding November 30, 2000, subject to the
termination of this agreement in accordance with Article VII. The period during
which Consultant serves the Company is referred to as the "Consulting Period."
This Agreement is subject to renewal on December 1, 2000, at the joint
discretion of the Company and the Consultant.
ARTICLE II. DUTIES
During the term of this Agreement, Consultant agrees to be available to
provide services to the Company on such projects as the Company may reasonably
request from time to time. The parties agree that after November 30, 1999,
Consultant is not expected to be available more than the equivalent of ten (10)
full days in any month. The Company is not required to use any minimum amount of
services. Consultant will report to the Chief Executive Officer or such other
officer as the Chief Executive Officer directs. Consultant will report his time
to the Company on a monthly basis.
Consultant will be available for reasonable telephone consultation with the
Company or the other parties with respect to services to be rendered.
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ARTICLE III. COMPENSATION
The parties agree that Consultant's compensation for services rendered
pursuant to this Agreement shall be $1,200.00 per full day (or $150.00 per hour
for less than a full day). Consultant shall keep records of time, shall invoice
the Company no more frequently than monthly and shall be paid within 30 days of
receipt of invoice. In lieu of compensation by cash or check, the Company may
pay fifty percent (50%) of the compensation due by cash or check and the other
fifty percent (50%) in shares of stock of the Company. If payment is made in
shares, the price for the shares issued will be the average closing price for
the shares during the month the services were rendered.
The Company shall reimburse Consultant for all reasonable expenses incurred
in connection with the performance of services per this Agreement. Consultant
will not be compensated for travel time.
ARTICLE IV. CONFIDENTIAL INFORMATION
1. Access to Confidential Information. Consultant understands that, during
the Consulting Period with the Company, Consultant 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.
2. Nondisclosure of Confidential Information. Consultant agrees that,
during the Consulting Period or thereafter, Consultant 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
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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 Consultant, publicly known or to the extent that Consultant
already knew such information at the time of its disclosure to the Consultant by
the Company, as evidenced by written materials in the Consultant's files.
3. Confidential Information Property of the Company. Consultant understands
that all data, including drawings, prints, specifications, designs, notes,
notebooks, records, documents, reproductions or other papers or memoranda of
every kind which come into Consultant's possession in the course of providing
the consulting services are the sole property of the Company, and Consultant
will surrender all such property to the Company upon request and in any event
upon termination of Consultant's services.
ARTICLE V. INVENTIONS
1. Maintenance of Records. Consultant agrees to keep separate and
segregated from Consultant's other personal property, including any work
Consultant is doing for any other party, all documents, records, notebooks and
correspondence relating to Consultant's work for the Company, and to maintain
notebooks and other records in such form as the Company reasonably requests.
2. Disclosure of Information. Consultant agrees to advise the Company in
writing of possible product ideas that are within the Company's scope of
business that Consultant becomes aware of during the course of consulting with
the Company. If the Company does not elect to pursue the development of the
product within 60 days after being advised, or elects to pursue but then within
6 months after electing does not make any good faith or reasonable effort toward
development of the product, then Consultant shall be permitted to pursue
development without any compensation to the Company.
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ARTICLE VI. NO CONFLICTING OBLIGATION
1. No Conflicting Agreements. The Company understands and agrees that
during the Consulting Period, Consultant may be retained by other companies,
corporations, and/or commercial enterprises to perform consulting services; and
that Consultant will be pursuing Consultant's own business interests. Consultant
agrees, however, that, during the Consulting Period, Consultant will not, for
Consultant's own account or as an officer, member, employee, director,
consultant representative or advisor of another, engage in or contribute
Consultant's knowledge to engineering, development, manufacturing, research,
business analysis or sales relating to any Heska product, equipment, process or
material of the Company that is known to Consultant, without the written
permission of the Company. The foregoing provision, however, shall not prohibit
Consultant from engaging in any work at any time during or after the Consulting
Period, provided that Confidential Information will not be involved in such
work. The provisions of this Article VI.1. will not be construed as limiting to
any extent Consultant's obligations under any other section of this Agreement.
2. No Conflict With Prior Agreements. Consultant represents and warrants to
the Company and its affiliates that Consultant's retention by the Company and
Consultant's performance of Consultant's obligations under this Agreement do not
conflict with any prior obligations to third parties, including others for whom
Consultant performs consulting or other services. Consultant represents and
warrants that the Company has not asked Consultant to reveal, nor will it do so,
any trade secrets or other proprietary or confidential information that may have
been gained by Consultant during previous employment or other consulting
agreements which Consultant is under obligation not to disclose.
ARTICLE VII. TERMINATION
The Consulting Period may be terminated by Consultant or the Company for
any reason upon ten days' written notice.
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ARTICLE VIII. LEGAL RELATIONSHIP
Consultant's relationship with the Company is that of an independent
contractor and not as an employee or agent of the Company. Consultant will not
be entitled to any benefits or compensation from the Company except as set forth
in this Agreement or any separate agreement with the Company. The person to
perform the consulting services will be R. Lee Seward. CONSULTANT AGREES THAT
CONSULTANT IS NOT ENTITLED TO WORKERS' COMPENSATION BENEFITS AND THAT CONSULTANT
IS RESPONSIBLE FOR DIRECT PAYMENT OF ANY FEDERAL OR STATE TAXES ON THE
COMPENSATION PAID TO CONSULTANT UNDER THIS AGREEMENT, EXCEPT TO THE EXTENT THE
COMPANY WITHHOLDS SUCH TAXES. Consultant understands that Consultant is not
authorized to bind the Company or make any representations on its behalf in any
matter. The Company is advised that the principal owner of Consultant is a
licensed veterinarian, that Consultant is a separate company with the purpose to
develop animal products. Consultant intends to discover, develop, manufacture,
market, and sell products for companion animals, primarily horses. Products
currently being developed or considered for development are an antiparasitic
product for horses in a treat or top dress formulation, products based on
transdermal and other delivery technologies, and horse supplements and feed.
Consultant may pursue these and other products, subject to Article V.2., without
being in a conflict of interest with the Company or being liable for any
compensation to the Company.
ARTICLE IX. ASSIGNMENT; BINDING EFFECT
The services to be rendered under this Agreement are personal in nature,
and Consultant's rights and obligations under this Agreement may not be assigned
by Consultant without the prior written consent of the Company. Subject to this
restriction, this Agreement shall be binding upon Consultant, its successors and
assigns and shall inure to the benefit of the Company and its successors and
assigns.
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ARTICLE X. GOVERNING LAW
This Agreement shall be governed by the laws of 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.
ARTICLE XI. REMEDIES
Consultant recognizes that any violation of this Agreement by Consultant
would cause the Company irreparable damage for which other remedies would be
inadequate, and Consultant therefore agrees 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.
ARTICLE XII. WAIVER
The Company's waiver or failure to enforce the terms of 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.
ARTICLE XIII. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Company and
Consultant relating to the subject matter hereof, and supersedes all prior and
contemporaneous negotiations, correspondence, understandings and agreements
between the parties relating to the subject matter hereof. This Agreement may be
modified or amended only by mutual written consent of the parties.
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IN WITNESS WHEREOF, all parties have signed this Agreement effective as of
the date of this Agreement on page one hereof.
CONSULTANT:
SEWARD PHARM, LLC
By: /s/ R. Lee Seward
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R. Lee Seward,
Managing Director
HESKA CORPORATION
By: /s/ Robert B. Grieve
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Robert B. Grieve,
Chief Executive Officer
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