SUCH LESSER
EXTENT WHICH WOULD RESULT IN NO PORTION OF SUCH BENEFITS BEING SUBJECT TO THE
EXCISE TAX, WHICHEVER OF THE FOREGOING AMOUNTS, WHEN TAKING INTO ACCOUNT
APPLICABLE FEDERAL, STATE, LOCAL AND FOREIGN INCOME AND EMPLOYMENT TAXES, THE
EXCISE TAX, AND ANY OTHER APPLICABLE TAXES, RESULTS IN THE RECEIPT BY EXECUTIVE,
ON AN AFTER-TAX BASIS, OF THE GREATEST AMOUNT OF BENEFITS, NOTWITHSTANDING THAT
ALL OR SOME PORTION OF SUCH BENEFITS MAY BE TAXABLE UNDER THE EXCISE TAX. UNLESS
THE COMPANY AND EXECUTIVE OTHERWISE AGREE IN WRITING, ANY DETERMINATION REQUIRED
UNDER THIS SECTION 7(E) SHALL BE MADE IN WRITING IN GOOD FAITH BY THE COMPANY'S
INDEPENDENT ACCOUNTANTS. IN THE EVENT OF A REDUCTION OF BENEFITS HEREUNDER,
EXECUTIVE SHALL BE GIVEN THE CHOICE OF WHICH BENEFITS TO REDUCE. IF EXECUTIVE
DOES NOT PROVIDE WRITTEN IDENTIFICATION TO THE COMPANY OF WHICH BENEFITS HE
CHOOSES TO REDUCE WITHIN TEN (10) DAYS AFTER WRITTEN NOTICE OF THE ACCOUNTANTS'
DETERMINATION, AND EXECUTIVE HAS NOT DISPUTED THE ACCOUNTANTS' DETERMINATION,
THEN THE COMPANY SHALL SELECT THE BENEFITS TO BE REDUCED. FOR PURPOSES OF MAKING
THE CALCULATIONS REQUIRED BY THIS SECTION 7(E), THE ACCOUNTANTS MAY MAKE
REASONABLE ASSUMPTIONS AND APPROXIMATIONS CONCERNING APPLICABLE TAXES AND MAY
RELY ON REASONABLE, GOOD FAITH INTERPRETATIONS CONCERNING THE APPLICATION OF THE
CODE, AND OTHER APPLICABLE LEGAL AUTHORITY. THE COMPANY AND EXECUTIVE SHALL
FURNISH TO THE ACCOUNTANTS SUCH INFORMATION AND DOCUMENTS AS THE ACCOUNTANTS MAY
REASONABLY REQUEST IN ORDER TO MAKE A DETERMINATION UNDER THIS SECTION 7(E). THE
COMPANY SHALL BEAR ALL COSTS THE ACCOUNTANTS MAY REASONABLY INCUR IN CONNECTION
WITH ANY CALCULATIONS CONTEMPLATED BY THIS SECTION 7(E).
8.
CONDITIONS TO RECEIPT OF SEVERANCE; NO DUTY TO MITIGATE.
(A)
SEPARATION AGREEMENT AND RELEASE OF CLAIMS. THE RECEIPT OF ANY
SEVERANCE PURSUANT TO SECTION 7 WILL BE SUBJECT TO EXECUTIVE SIGNING AND NOT
REVOKING A SEPARATION AGREEMENT AND RELEASE OF CLAIMS IN A FORM REASONABLY
ACCEPTABLE TO HESKA. SUCH AGREEMENT WILL PROVIDE (AMONG OTHER THINGS) THAT THE
PARTIES WILL NOT DISPARAGE EACH OTHER OR THE COMPANY, ITS DIRECTORS, OR ITS
EXECUTIVE OFFICERS. NO SEVERANCE WILL BE PAID OR PROVIDED UNTIL THE SEPARATION
AGREEMENT AND RELEASE AGREEMENT BECOMES EFFECTIVE WHICH SHALL BE PREPARED AND
EXECUTED BEFORE THE TERMINATION DATE.
(B)
NON-COMPETITION. IN THE EVENT OF A TERMINATION OF EXECUTIVE'S
EMPLOYMENT THAT OTHERWISE WOULD ENTITLE EXECUTIVE TO THE RECEIPT OF SEVERANCE
PURSUANT TO SECTION 7(B), EXECUTIVE AGREES NOT TO ENGAGE IN COMPETITION (AS
DEFINED BELOW) FOR 12 MONTHS FOLLOWING THE TERMINATION DATE. IF EXECUTIVE
ENGAGES IN COMPETITION WITHIN SUCH PERIOD ALL CONTINUING PAYMENTS AND BENEFITS
TO WHICH EXECUTIVE OTHERWISE MAY BE ENTITLED PURSUANT TO SECTION 7(B) WILL CEASE
IMMEDIATELY. IN ADDITION TO THE REMEDY SPECIFIED IN THE PRECEDING SENTENCE, THE
COMPANY WILL HAVE AGAINST EXECUTIVE IN THE EVENT OF HIS BREACH OF THIS SECTION
8(B) ANY AND ALL REMEDIES AVAILABLE TO IT IN LAW OR IN EQUITY, INCLUDING WITHOUT
LIMITATION THE RIGHT TO SEEK RECOVERY OF ANY AMOUNTS PAID UNDER SECTION 7 OF
THIS AGREEMENT.
(C)
NONSOLICITATION. IN THE EVENT OF A TERMINATION OF EXECUTIVE'S
EMPLOYMENT THAT OTHERWISE