AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
WITH
GIUSEPPE MIOZZARI
W I T N E S S E T H:
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is entered into
effective as of JUNE 9, 2000, by and between Heska AG, a corporation organized
under the laws of Switzerland with its principal office at Gruengenstrasse 19,
CH-4416 Bubendorf ("Company") and GIUSEPPE MIOZZARI ("Employee"). Company and
Employee are collectively referred to herein as the "Parties."
WHEREAS, effective as of July 1, 1997, Company and Employee entered into an
Employment Agreement, (the "Employment Agreement"); and
WHEREAS, the Parties desire to restate the Employment Agreement for ease of
reference and to further amend said agreement for the purpose of making certain
provisions more consistent with current Company practice.
NOW THEREFORE, in consideration of the foregoing, the Parties agree as follows:
A. The Employment Agreement is hereby restated and amended as set forth below:
Whereas Company desires to employ Employee to act as its MANAGING DIRECTOR in
an at-will capacity; and
Whereas Employee wishes to act as Company's MANAGING DIRECTOR 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 MANAGING DIRECTOR, and
Employee hereby accepts such employment.
2. Duties and Responsibilities. Employee shall serve as MANAGING DIRECTOR 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 reasonably change
such title, duties and responsibilities from time to time, in their discretion.
Employee shall devote his full time and energies to such duties. Employee
shall not be entitled to any special remuneration for overtime work.
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 322'711 SFr, 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 and as
comply with Swiss law. These may include, from time to time, medical
insurance, life insurance, paid vacation time and medical disability insurance.
In addition, Employee shall be entitled to the following additional benefits:
(a) Company shall bear 50% of the cost of pension contributions with
respect to the full amount of Employee's base salary, including amounts
above the statutory limit, with Employee to bear the balance, all in the
amounts set by the pension insurer selected by Company for others of like
age.
(b) Company shall bear the costs of leasing, insuring and maintaining a
car (including gasoline) for the business and personal use of Employee,
with the expected personal use not to exceed 25%.
(c) Employee's base salary payable under Section 3 shall include an
expense base allowance of 24,000 SFr per year for Employee's use in
accordance with reasonable policies to be adopted by Company.
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) This Agreement may be terminated by either party, for cause or
without cause, by giving one month prior written notice, with the
effective date of termination to be on the last day of the month
following the month in which notice is given.
(ii) Notwithstanding Section 6(a)(i) above, each party may for valid
reasons as defined in Article 337 of the Swiss Code of Obligations or
any successor statute, terminate this Agreement at any time and
without giving written notice to the other party.
(b) Termination "Without Cause" - Separation Benefits.
(i) Upon "involuntary termination" of his employment with Company
for other than a "change of control", as defined in Paragraph
6(c)(iii) below, or by Employee as permitted under Section 6(a)(ii)
above, 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.
(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 and accident insurance premiums for the medical
insurance coverage previously maintained by the Company for Employee
during this six month period or until Employee is provided or obtains
medical insurance coverage by another employer or entity, whichever
first occurs. Company will continue to make the pension
contributions provided under Section 5(a) with respect to severance
payments during the severance pay period but shall otherwise have no
obligation to continue any benefits other than salary during the
severance pay period.
(iii) Any severance payment due as a result of Employee's
termination of his employment as provided in Section 6(a)(ii) above
shall be reduced by any compensation granted to Employee by the Swiss
courts, if any, with such reduction to apply to the latest
installments otherwise due.
(c) Change of Control - Separation Benefits.
(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.
(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.
(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, or if new
position requires Employee to commute more than 50km each way from
present home and Employee elects to resign.
(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 and accident insurance premiums for the medical insurance
coverage previously maintained by the Company for Employee during
this one year period or until Employee is provided or obtains medical
insurance coverage by another employer or entity, whichever first
occurs. Company will continue to make the pension contributions
provided under Section 5(a) with respect to severance payments during
the severance pay period.
(d) Termination "For Cause"; Voluntary Resignation.
(i) If Company or its successor terminates Employee for "cause", or
if Employee's employment terminates for any reason other than a
termination as permitted by Paragraph 6(a)(iii), 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, as prescribed by Swiss law according to paragraph 6(a)(i).
(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:
(A) Employee shall refuse to accept a reasonable change or
modification of his title, duties or responsibilities by senior
management and/or the Board of Directors;
(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 50km's 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) Employee shall commit any breach of his obligations under
this Agreement;
(E) Employee shall commit any breach of any material fiduciary
duty to Company;
(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;
(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;
(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
(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 applicable Swiss
Arbitration body, 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 Swiss law. 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.
HESKA AG
By: /s/ Robert B. Grieve
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Robert B. Grieve
Title: Chief Executive Officer
EMPLOYEE
Name: /s/ Giuseppe Miozzari
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Giuseppe Miozzari