THE PARTY OR PARTIES ENTITLED
TO THE BENEFIT THEREOF. ANY SUCH WAIVER SHALL BE VALIDLY AND SUFFICIENTLY
AUTHORIZED FOR THE PURPOSES OF THIS AGREEMENT IF, AS TO ANY PARTY, IT IS
AUTHORIZED IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY. THE FAILURE
OF ANY PARTY HERETO TO ENFORCE AT ANY TIME ANY PROVISION OF THIS AGREEMENT SHALL
NOT BE CONSTRUED TO BE A WAIVER OF SUCH PROVISION, NOR IN ANY WAY TO AFFECT THE
VALIDITY OF THIS AGREEMENT OR ANY PART HEREOF OR THE RIGHT OF ANY PARTY
THEREAFTER TO ENFORCE EACH AND EVERY SUCH PROVISION. NO WAIVER OF ANY BREACH OF
THIS AGREEMENT SHALL BE HELD TO CONSTITUTE A WAIVER OF ANY OTHER OR SUBSEQUENT
BREACH.
18.
PARTIAL INVALIDITY. WHEREVER POSSIBLE, EACH PROVISION HEREOF SHALL
BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW,
BUT IN CASE ANY ONE OR MORE OF THE PROVISIONS CONTAINED HEREIN SHALL, FOR ANY
REASON, BE HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT, SUCH
PROVISION SHALL BE INEFFECTIVE TO THE EXTENT, BUT ONLY TO THE EXTENT, OF SUCH
INVALIDITY, ILLEGALITY OR UNENFORCEABILITY WITHOUT INVALIDATING THE REMAINDER OF
9
SUCH INVALID, ILLEGAL OR UNENFORCEABLE PROVISION OR PROVISIONS OR ANY OTHER
PROVISIONS HEREOF, UNLESS SUCH A CONSTRUCTION WOULD BE UNREASONABLE.
19.
TAX MATTERS.
(A)
EXCEPT AS PROVIDED IN PARAGRAPH 7(E) ABOVE, EXECUTIVE AGREES THAT
HE IS RESPONSIBLE FOR ANY APPLICABLE TAXES OF ANY NATURE (INCLUDING ANY
PENALTIES OR INTEREST THAT MAY APPLY TO SUCH TAXES) THAT ARE REASONABLY
DETERMINED TO APPLY TO ANY PAYMENT MADE TO EXECUTIVE HEREUNDER (OR ANY
ARRANGEMENT CONTEMPLATED HEREUNDER), THAT EXECUTIVE'S RECEIPT OF ANY BENEFIT
HEREUNDER IS CONDITIONED ON HIS SATISFACTION OF ANY APPLICABLE WITHHOLDING OR
SIMILAR OBLIGATIONS THAT APPLY TO SUCH BENEFIT, AND THAT ANY CASH PAYMENT OWED
TO EXECUTIVE HEREUNDER WILL BE REDUCED TO SATISFY ANY SUCH WITHHOLDING OR
SIMILAR OBLIGATIONS THAT MAY APPLY THERETO. EXECUTIVE AND HESKA AGREE TO
COOPERATE TO MAKE SUCH AMENDMENTS TO THE TERMS OF THIS AGREEMENT AS MAY BE
NECESSARY TO AVOID THE IMPOSITION OF PENALTIES AND ADDITIONAL TAXES UNDER
SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; PROVIDED HOWEVER,
THAT NO SUCH AMENDMENT SHALL MATERIALLY INCREASE THE COST TO, OR IMPOSE ANY
LIABILITY ON, HESKA WITH RESPECT TO ANY BENEFITS CONTEMPLATED OR PROVIDED
HEREUNDER.
(B)
EXECUTIVE ACKNOWLEDGES THAT NO REPRESENTATIVE OR AGENT OF HESKA
HAS PROVIDED HIM WITH ANY TAX ADVICE OF ANY NATURE, AND EXECUTIVE HAS CONSULTED
WITH HIS OWN LEGAL, TAX AND FINANCIAL ADVISOR(S) AS TO TAX AND RELATED MATTERS
CONCERNING THE COMPENSATION TO BE RECEIVED UNDER THIS AGREEMENT.
20.
GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
COLORADO WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. THE PARTIES HERETO EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY AND ALL SUCH CLAIMS AND
CAUSES OF ACTION.
21.
ARBITRATION; ATTORNEYS' FEES. IF ANY DISPUTE ARISES UNDER THIS
AGREEMENT OR BY REASON OF