EMPLOYMENT AGREEMENT
Exhibit
10.1
This
AGREEMENT (this “Agreement”) is made as of October 1, 2006 (the “Effective
Date”), by
and
between Allion Healthcare, Inc., a corporation with its headquarters located
at
0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 (the “Employer”), and Xxxxxxx
X. Xxxxx (the “Executive”).
WHEREAS,
the Employer and the Executive desire to enter into an agreement to reflect
the
Executive’s duties and responsibilities and to provide for the Executive’s
employment by the Employer upon the terms and conditions set forth herein;
and
WHEREAS,
the Executive has agreed to certain confidentiality, non-competition and
non-solicitation covenants contained hereunder, in consideration of the
additional benefits provided to the Executive under this Agreement;
NOW
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
and intending to be legally bound, the Employer and the Executive agree as
follows:
1. Employment.
The
Employer agrees to employ the Executive and the Executive agrees to be employed
by the Employer on the terms and conditions set forth in this
Agreement.
2. Capacity.
The
Executive shall serve the Employer as its Chief Executive Officer, President
and
Chairman of the Board. The Executive shall also serve the Employer in such
other
or additional offices as the Executive may reasonably be requested to serve
by
the Board of Directors of the Company (the “Board of Directors”). In such
capacity or capacities, the Executive shall perform such services and duties
in
connection with the business, affairs and operations of the Employer, consistent
with such positions, as may be assigned or delegated to the Executive from
time
to time by or under the authority of the Board of Directors.
3. Term.
Subject
to the provisions of Section 6, the term of employment pursuant to this
Agreement (the “Term”) shall commence on the Effective Date and terminate on the
first anniversary of the Effective Date; provided that the Term shall
automatically be renewed for successive periods of one (1) year unless either
party gives written notice to the other party, at least ninety (90) days prior
to the end date of the then Term, of that party’s intent not to renew this
Agreement.
4. Compensation
and Benefits.
The
compensation and benefits payable to the Executive during the Term shall be
as
follows:
(a) Salary.
For all
services rendered by the Executive under this Agreement, the Employer shall
pay
the Executive a salary (“Salary”) at the annual rate of three hundred fifty
thousand dollars ($350,000.00) per annum, subject to increases from
time
to time in the sole discretion of the Compensation Committee of the Board of
Directors (the
“Compensation Committee”). Salary shall be payable in periodic installments in
accordance with the Employer’s usual practice for its senior
executives.
(b) Bonus.
The
Executive may be awarded performance bonuses on an annual basis, commencing
with
a bonus that may be awarded for the 2006 calendar year, as determined by the
Board of Directors or the Compensation Committee in the sole discretion of
the
Board of Directors or Compensation Committee, respectively; provided, however,
that the bonus for any such year shall not exceed forty percent (40%) of Salary
for such year.
(c)
Stock
Options.
The
Executive has been issued options to purchase shares of common stock of the
Employer in accordance with the Employer’s stock option plan and the Executive’s
stock option agreement thereunder.
(d) Regular
Benefits.
The
Executive shall also be entitled to participate in any employee benefit plans,
medical insurance plans, life insurance plans, disability income plans,
retirement plans, vacation plans, expense reimbursement plans and other benefit
plans which the Employer may from time to time have in effect for all or most
of
its senior executives. Such participation shall be subject to the terms of
the
applicable plan documents, generally applicable policies of the Employer,
applicable law and the discretion of the Board of Directors, the Compensation
Committee or any administrative or other committee provided for in or
contemplated by any such plan. Nothing contained in this Agreement shall be
construed to create any obligation on the part of the Employer to establish
any
such plan or to maintain the effectiveness of any such plan which may be in
effect from time to time.
(e) Automobile.
The
Employer shall provide the Executive with an automobile allowance of $800 per
month to compensate the Executive for expenses related to the use of an
automobile and reasonable business-related expenses associated with such
automobile and its maintenance and operation.
(f) Taxation
of Payment and Benefits.
The
Employer shall undertake to make deductions, withholdings and tax reports with
respect to payments and benefits under this Agreement to the extent that it
reasonably and in good faith believes that it is required to make such
deductions, withholdings and tax reports. Payments under this Agreement shall
be
in amounts net of any such deductions or withholdings. Nothing in this Agreement
shall be construed to require the Employer to make any payments to compensate
the Executive for any adverse tax effect associated with any payments or
benefits or for any deduction or withholding from any payment or
benefit.
(g) Exclusivity
of Salary and Benefits.
The
Executive shall not be entitled to any payments or benefits other than those
provided under this Agreement.
5. Extent
of Service.
During
the Term, the Executive shall, subject to the direction and supervision of
the
Board of Directors, devote the Executive’s full business time, best efforts and
business judgment, skill and knowledge to the advancement of the Employer’s
interests and to the discharge of the Executive’s duties and responsibilities
under this Agreement. The Executive shall not engage in any other business
activity, except as may be approved by the Board of Directors; provided that
nothing in this Agreement shall be construed as preventing the
Executive
from (a) investing the Executive’s assets in any company or other entity in a
manner not prohibited by Section 8(d), or (b) engaging in religious, charitable
or other community or non-profit activities that, in the case of (a) or (b)
above, do not in any way impair the Executive’s ability to fulfill the
Executive’s duties and responsibilities under this Agreement.
6. Termination
and Termination Benefits.
Notwithstanding any other provision of this Agreement, (i) the Employer may
terminate the Executive’s employment hereunder at any time with or without Cause
(as defined in Section 7(a)) at its election; (ii) the Executive may terminate
the Executive’s employment hereunder at any time with or without Good Reason (as
defined in Section 7(b)) at the Executive’s election; (iii) Executive’s
employment hereunder shall automatically terminate upon the Executive’s death;
and (iv) the Executive’s employment shall terminate upon the Executive’s
disability as provided in Section 6(c). The date of termination of the
Executive’s employment hereunder, whether upon scheduled termination of the then
Term, termination by either the Employer or the Executive as provided in this
Agreement, or by reason of the Executive’s death or disability, is the
“Termination Date.” Any termination of employment hereunder shall be effective
upon the date of scheduled termination of the then Term, the date of receipt
by
the non-terminating party of a notice of termination from the terminating party
with or without Cause (in the case of a termination by the Employer) or with
or
without Good Reason (in the case of a termination by the Executive), the date
of
death, or after the onset of disability as provided in Section 6(c), as the
case
may be; provided that, in the case of a termination by the Employer, the
Employer may specify in the notice of termination a later termination date
(which date shall be no later than thirty (30) days after the date of such
notice of termination). The amounts payable to the Executive and other benefits
provided to the Executive under this Section 6 shall be referred to as
“Termination Benefits”.
(a) Termination
by the Employer for Cause, by the Executive without Good Reason, Death, or
notice of nonrenewal by the Executive.
If the
Employer terminates the Executive’s employment for Cause, if the Executive
terminates his employment with the Employer without Good Reason, or if the
Executive provides the Employer with notice of non-renewal as provided in
Section 3, the Executive shall be entitled to:
(i) accrued
but unpaid Salary through the Termination Date;
(ii) cash
in
lieu of any accrued but unused vacation through the Termination Date; and
(iii) any
benefits accrued or payable to the Executive under the Employer’s benefit plans
(in accordance with the terms of such benefit plans).
Upon
payment or provision of (i) through (iii) above (collectively, the “Accrued
Benefits”), the Employer shall have no further obligations to the Executive
under this Agreement.
(b) Termination
by the Executive for Good Reason, by the Employer Without Cause, or by notice
of
nonrenewal by the Employer.
If the
Executive terminates his employment with the Employer for Good Reason or if
the
Employer terminates the Executive’s employment with the Employer without Cause,
the Executive shall be entitled to:
(i) the
Accrued Benefits;
(ii) continuation
of Salary, at the rate in effect on the Termination Date, that would have been
paid to the Executive, as if there had been no termination described in this
Section 6(b), through the expiration of the then Term, payable according to
the
normal payroll policies of the Employer for senior executives;
(iii)
$350,000,
payable in a lump sum within five (5) business days after the Termination Date;
and
(iv) continuation
of group health plan benefits to the extent authorized by and consistent with
29
U.S.C. § 1161 et seq. (commonly known as “COBRA”), with the cost of the regular
premium for such benefits shared in the same relative proportion by the Employer
and the Executive as in effect on the Termination Date, provided that the
Executive’s entitlements under this clause (iv) shall terminate as of the date
of commencement of eligibility for health insurance pursuant to other employment
or self-employment.
Notwithstanding
the foregoing, nothing in this Section 6(b) shall be construed to affect the
Executive’s right to receive COBRA continuation entirely at the Executive’s own
cost to the extent that the Executive may continue to be entitled to COBRA
continuation after the Executive’s right to cost sharing under Section 6(b)(iii)
ceases. The Executive shall be obligated to give prompt notice of the date
of
commencement of any employment or self-employment and shall respond promptly
to
any reasonable inquiries concerning any employment or self-employment in which
the Executive engages during the Termination Benefits Period.
(c) Disability.
If the
Executive shall be physically or mentally disabled so as to be unable to perform
substantially all of the essential functions of the Executive’s then existing
position or positions under this Agreement with or without reasonable
accommodation, the Board of Directors may remove the Executive from any
responsibilities and/or reassign the Executive to another position with the
Employer for the remainder of the Term or during the period of such disability.
Notwithstanding any such removal or reassignment, the Executive shall continue
to be employed by the Employer and continue to receive Salary (less any
disability pay or sick pay benefits to which the Executive may be entitled
under
the Employer’s plans and policies) and other compensation and benefits under
Section 4 of this Agreement (except to the extent that the Executive may be
ineligible for one or more such benefits under applicable plan terms) until
the
earlier of (i) the date that is six (6) months after the onset of the disability
and (ii) the termination of the then Term, at which time this Agreement shall
terminate and the Executive shall be entitled only to those Termination Benefits
set forth in Section 6(a). If any question shall arise as to whether during
any
period the Executive is disabled so as to be unable to perform substantially
all
of the essential functions of the Executive’s then existing position or
positions with or without reasonable accommodation, the Executive may, and
at
the request of the Employer shall, submit to the Employer a certification in
reasonable detail by a physician selected by the Employer to whom the Executive
or the
Executive’s
guardian has no reasonable objection as to whether the Executive is so disabled
or how long such disability is expected to continue, and such certification
shall for the purposes of this Agreement be conclusive of the issue. The
Executive shall cooperate with any reasonable request of the physician in
connection with such certification. If such question shall arise and the
Executive shall fail to submit such certification, the Employer’s determination
of such issue shall be binding on the Executive. Nothing in this Section 6(c)
shall be construed to waive the Executive’s rights, if any, under existing law
including, without limitation, the Family and Medical Leave Act of 1993, 29
U.S.C. §2601 et
seq. and
the
Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. §00000 et
seq.
7. Definitions.
For
purposes of this Agreement, the following terms shall have the following
meanings:
(a) “Cause”
shall mean (i) the failure of the Executive to perform the Executive’s duties
for the Employer in accordance with Section 2 above, including without
limitation, the Executive’s failure to follow the directives of the Board of
Directors, consistent with Section 2, or any other material breach by the
Executive of this Agreement, provided that the Employer gives notice of such
breach to the Executive in writing and such breach remains uncured for thirty
(30) days following the date such notice is given; (ii) the Executive’s breach
of any obligation of the Executive under Section 8; (iii) any act by the
Executive of fraud or theft; (iv) a conviction by a court of competent
jurisdiction that the Executive is guilty of a felony, or a misdemeanor
involving moral turpitude, deceit, dishonesty or fraud, or a plea of nolo
contendere thereto; or (v) engaging in reckless behavior (the failure to use
even the slightest amount of care) or willful misconduct by the Executive with
respect to the Employer or its business or assets that has had or is reasonably
likely to have a material adverse effect on the Employer or its business or
assets. No act or omission by the Executive reasonably believed to be in or
not
adverse to the interests of the Employer shall constitute Cause. For purposes
of
this Agreement, the Executive shall not be deemed to have been terminated for
Cause unless and until there shall has been delivered to the Executive a copy
of
a resolution, duly adopted by the Board of Directors, stating that, in the
good
faith opinion of the Board of Directors, Cause exists and specifying the
particulars thereof in reasonable detail. Before adopting any such resolution,
the Board of Directors shall offer the Executive, upon reasonable prior written
notice (which need not exceed five business days), an opportunity for him,
together with his counsel, to be heard by the Board of Directors.
(b) “Good
Reason” shall mean the occurrence of any of the events described below that
continues for, and for which the Employer has not cured within, thirty (30)
days
after written notice thereof to the Employer from the Executive:
(i) Any
material or significant adverse change in the nature or scope of the
authorities, powers, functions, responsibilities or duties of the
Executive;
(ii) Any
reduction in the amount of the Executive’s compensation or benefits as set forth
in Section 4 of this Agreement;
(iii) Any
material loss of title or office;
(iv) Any
material breach by the Employer or their successors of any other provision
of
this Agreement;
(v) The
relocation of the offices at which the Executive is principally employed as
of
the Effective Date to a location not in Nassau or Suffolk counties, which
relocation is not approved by the Executive;
(vi) The
failure to permit the Executive to adopt or implement procedures or policies
required or advisable for legal or regulatory reasons, other interference with
the Executive’s compliance with legal obligations; or
(vii) A
Change
in Control (as defined in Section 4(c) below), provided that the Executive
has
given the Employer notice of his termination for Good Reason within thirty
(30)
days after such Change in Control.
(c) “Change
in Control” shall mean the occurrence of one or more of the following
events:
(i) any
“person” (as such term is used in Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) becomes a “beneficial
owner” (as such term is defined in Rule 13d-3 promulgated under the Exchange
Act) (other than the Employer, any trustee or other fiduciary holding securities
under an employee benefit plan of the Employer, or any corporation owned,
directly or indirectly, by the stockholders of the Employer, in substantially
the same proportions as their ownership of stock of the Employer), directly
or
indirectly, of securities of the Employer, representing fifty percent (50%)
or
more of the combined voting power of the Employer’s then outstanding securities;
or
(ii) persons
who, as of the Effective Date, constituted the Employer’s Board of Directors
(the “Incumbent Board”) cease for any reason including, without limitation, as a
result of a tender offer, proxy contest, merger or similar transaction, to
constitute at least a majority of the Board of Directors, provided that any
person becoming a director of the Employer subsequent to the Effective Date
whose election was approved by at least a majority of the directors then
comprising the Incumbent Board shall, for purposes of this Section 7(c), be
considered a member of the Incumbent Board; or
(iii) the
stockholders of the Employer approve a merger or consolidation of the Employer
with any other corporation or other entity, other than (1) a merger or
consolidation which would result in the voting securities of the Employer
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power
of
the voting securities of the Employer or such surviving entity outstanding
immediately after such merger or consolidation or (2) a merger or consolidation
effected to implement a recapitalization of the Employer (or similar
transaction) in which no “person” (as hereinabove defined) acquires more than
fifty percent (50%) of the combined voting power of the Employer’s then
outstanding securities; or
(iv) the
stockholders of the Employer approve a plan of complete liquidation of the
Employer or an agreement for the sale or disposition by the Employer of all
or
substantially all of the Employer’s assets.
8. Confidential
Information, Noncompetition and Cooperation.
(a) Confidential
Information.
As used
in this Agreement, “Confidential Information” means nonpublic (not as a result
of Executive’s wrongful disclosure) information belonging to the Employer which
is of value to the Employer in the course of conducting its business and the
disclosure of which could result in a competitive or other disadvantage to
the
Employer. Confidential Information includes, without limitation, financial
information, reports, and forecasts; inventions, improvements and other
intellectual property, trade secrets, know-how, designs, processes or formulae,
software, market or sales information or plans, customer lists; and business
plans, prospects, strategies and opportunities (such as possible acquisitions
or
dispositions of businesses or facilities) which have been discussed or
considered by the management of the Employer. Confidential Information includes
information developed by the Executive in the course of the Executive’s
employment by the Employer, as well as other information to which the Executive
may have access in connection with the Executive’s employment. Confidential
Information also includes the confidential information of others with which
the
Employer has a business relationship. Notwithstanding the foregoing,
Confidential Information does not include information in the public domain,
unless due to breach of the Executive’s duties under Section 8(b).
(b) Confidentiality.
The
Executive understands and agrees that the Executive’s employment creates a
relationship of confidence and trust between the Executive and the Employer
with
respect to all Confidential Information. At all times, both during the
Executive’s employment with the Employer and after its termination, the
Executive will keep in confidence and trust all such Confidential Information,
and will not use or disclose any such Confidential Information without the
written consent of the Employer, except as may be necessary in the ordinary
course of performing the Executive’s duties to the Employer.
(c) Documents.
Records. etc.
All
documents, records, data, apparatus, equipment and other physical property,
whether or not pertaining to Confidential Information, which are furnished
to
the Executive by the Employer or are produced by the Executive in connection
with the Executive’s employment will be and remain the sole property of the
Employer. The Executive will return to the Employer all such materials and
property as and when requested by the Employer. In any event, the Executive
will
return all such materials and property immediately upon termination of the
Executive’s employment for any reason. The Executive will not retain with the
Executive any such material or property or any copies thereof after such
termination.
(d) Noncompetition
and Nonsolicitation.
During
Executive’s employment with the Employer and for one (1) year thereafter, the
Executive (i) will not, directly or indirectly, whether as owner, partner,
shareholder, consultant, agent, employee, co-venturer or otherwise, engage,
participate, assist or invest in any Competing Business (as hereinafter
defined), (ii) will refrain from directly or indirectly employing, attempting
to
employ, recruiting or otherwise soliciting, inducing or influencing any person
to leave employment with the Employer (other than terminations of employment
of
subordinate employees undertaken in the course of the Executive’s employment
with the Employer); and (iii) will refrain from soliciting or encouraging any
customer or supplier to terminate or otherwise modify adversely its business
relationship with the Employer. The Executive understands that the restrictions
set forth in this Section 8 are intended to protect the Employer’s interest in
its Confidential Information and established employee, customer and supplier
relationships and goodwill, and agrees that such restrictions are reasonable
and
appropriate for this purpose. For purposes of this Agreement, the term
“Competing Business” shall
mean a business which consists of operating specialty HIV pharmacies anywhere
within the United States. Notwithstanding the foregoing, the Executive may
own
up to one percent (1%) of the outstanding stock of a publicly-held corporation
which constitutes or is affiliated with a Competing Business. The Employer
may
extend the period of noncompetition and nonsolicitation for an additional period
not exceeding one (1) year, provided that it extends and pays Termination
Benefits to the Executive for the duration of the extension. Notwithstanding
the
foregoing, the Executive’s obligations under Section 8(d)(i) shall terminate and
be of no further force or effect upon termination of the Executive’s Employment
under any of the circumstances described in Section 6(b).
(e) Third-Party
Agreements and Rights.
The
Executive hereby confirms that the Executive is not bound by the terms of any
agreement with any previous employer or other party which restricts in any
way
the Executive’s use or disclosure of information or the Executive’s engagement
in any business. The Executive represents to the Employer that the Executive’s
execution of this Agreement, the Executive’s employment with the Employer and
the performance of the Executive’s proposed duties for the Employer will not
violate any obligations the Executive may have to any such previous employer
or
other party. In the Executive’s work for the Employer, the Executive will not
disclose or make use of any information in violation of any agreements with
or
rights of any such previous employer or other party, and the Executive will
not
bring to the premises of the Employer any copies or
other
tangible embodiments of non-public information belonging to or obtained from
any
such previous employment or other party.
(f) Litigation
and Regulatory Cooperation.
During
and after the Executive’s employment, the Executive shall cooperate fully with
the Employer in the defense or prosecution of any claims or actions now in
existence or which may be brought in the future against or on behalf of the
Employer which relate to events or occurrences that transpired while the
Executive was employed by the Employer. The Executive’s full cooperation in
connection with such claims or actions shall include, but not be limited to,
being available to meet with counsel to prepare for discovery or trial and
to
act as a witness on behalf of the Employer at mutually-convenient times. During
and after the Executive’s employment, the Executive also shall cooperate fully
with the Employer in connection with any investigation or review of any federal,
state or local regulatory authority as any such investigation or review relates
to events or occurrences that transpired while the Executive was employed by
the
Employer. The Employer shall reimburse the Executive for any reasonable
out-of-pocket expenses incurred in connection with the Executive’s performance
of obligations pursuant to this Section 8(f).
(g) Injunction.
The
Executive agrees that it would be difficult to measure any damages caused to
the
Employer which might result from any breach by the Executive of the promises
set
forth in this Section 8, and that in any event money damages would be an
inadequate remedy for any such breach. Accordingly, subject to Section 8 of
this
Agreement, the Executive agrees that if the Executive breaches, or threatens
to
breach, any portion of this Agreement, the Employer shall be entitled, in
addition to all other remedies that it may have, to an injunction or other
appropriate equitable relief to restrain any such breach without showing or
proving any actual damage to the Employer.
(h)
Definition
of Employer.
For
purposes of this Section 8, “Employer” shall include Allion Healthcare, Inc. and
each of its subsidiaries.
9. Arbitration
of Disputes.
Any
controversy or claim arising out of or relating to this Agreement or the breach
thereof or otherwise arising out of the Executive’s employment or the
termination of that employment (including, without limitation, any claims of
unlawful employment discrimination whether based on age or otherwise) shall,
to
the fullest extent permitted by law, be settled by arbitration under the
auspices of the American Arbitration Association (“AAA”) in New York, New York
in accordance with the Employment Arbitration and Mediation Procedures of the
AAA, including, but not limited to, the rules and procedures applicable to
the
selection of arbitrators. In the event that any person or entity other than
the
Executive or the Employer may be a party with regard to any such controversy
or
claim, such controversy or claim shall be submitted to arbitration subject
to
such other person or entity’s agreement. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. This Section
9 shall be specifically enforceable. Notwithstanding the foregoing, this Section
9 shall not preclude either party from pursuing a court action for the sole
purpose of obtaining a temporary restraining order or a preliminary injunction
in circumstances in which such relief is appropriate; provided that any other
relief shall be pursued through an arbitration proceeding pursuant to this
Section 9.
10. Consent
to Jurisdiction.
To the
extent that any court action is permitted consistent with or to enforce Section
8 of this Agreement, the parties hereby consent to the jurisdiction of the
Supreme Court of the State of New York, Suffolk County, and the United States
District Court for the Eastern District of New York. Accordingly, with respect
to any such court action, the Executive (a) submits to the personal jurisdiction
of such courts; (b) consents to service of process; and (c) waives any other
requirement (whether imposed by statute, rule of court, or otherwise) with
respect to personal jurisdiction or service of process.
11. Integration.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes all prior agreements between the
parties with respect to any related subject matter.
12. Assignment;
Successors and Assigns; etc.
Neither
the Employer nor the Executive may make any assignment of this Agreement or
any
interest herein, by operation of law or otherwise, without the prior written
consent of the other party; provided that the Employer may assign its rights
under this Agreement without the consent of the Executive in the event that
the
Employer shall effect a reorganization, consolidate with or merge into any
other
corporation, partnership, organization or other entity, or transfer all or
substantially all of its properties or assets to any other corporation,
partnership, organization or other entity. This Agreement shall inure to the
benefit of and be binding upon the Employer and the Executive, their respective
successors, executors, administrators, heirs and permitted assigns.
13. Enforceability.
If any
portion or provision of this Agreement (including, without limitation, any
portion or provision of any section of this Agreement) shall to any extent
be
declared illegal or unenforceable by a court of competent jurisdiction, then
the
remainder of this Agreement, or the application of such portion or provision
in
circumstances other than those as to which it is so declared illegal or
unenforceable, shall not be affected thereby, and each portion and provision
of
this Agreement shall be valid and enforceable to the fullest extent permitted
by
law.
14. Waiver.
No
waiver of any provision hereof shall be effective unless made in writing and
signed by the waiving party. The failure of any party to require the performance
of any term or obligation of this Agreement, or the waiver by any party of
any
breach of this Agreement, shall not prevent any subsequent enforcement of such
term or obligation or be deemed a waiver of any subsequent breach.
15. Notices.
Any
notices, requests, demands and other communications provided for by this
Agreement shall be sufficient if in writing and delivered in person or sent
by a
nationally-recognized overnight courier service or by registered or certified
mail, postage prepaid, return receipt requested, to the Executive at the last
address the Executive has filed in writing with the Employer or, in the case
of
the Employer, at its main offices, attention of the Chairman of the Board of
Directors, and shall be effective on the date of delivery in person or by
courier or three (3) days after the date mailed.
16. Amendment.
This
Agreement may be amended or modified only by a written instrument signed by
the
Executive and by a duly authorized representative of the Employer.
17. Construction.
This
Agreement has been drafted and reviewed jointly by the parties, and no
presumption of construction as to the drafting of this Agreement shall be
applied against or in favor of any party.
18. Governing
Law.
This is
a New York contract and shall be construed under and be governed in all respects
by the laws of the State of New York, without giving effect to the conflict
of
laws principles of New York. With respect to any disputes concerning federal
law, such disputes shall be determined in accordance with the law as it would
be
interpreted and applied by the United States Court of Appeals for the Second
Circuit.
19.
Indemnification.
The
provisions of Article VII (Indemnification) of the Second Amended and Restated
By Laws dated June 24, 2002 of the Employer as in effect on the date hereof
are
deemed incorporated herein by reference and any amendment to such By Laws after
the date hereof shall not be incorporated by reference herein if the effect
thereof is to reduce the rights conferred on the Executive.
20. Legal
Fees. The
parties acknowledge that the Employer has reimbursed the Executive for legal
fees incurred in connection with the preparation of this Agreement and has
no
further obligation in connection therewith. If there is an arbitration or court
proceeding between the Executive and the Employer in connection with Executive’s
enforcement of the terms of this Agreement and it has been determined in such
arbitration or proceeding that the Executive has substantially prevailed in
such
arbitration or proceeding, the Employer shall reimburse the Executive’s
reasonable fees and expenses incurred in connection with such arbitration or
proceeding in an amount not to exceed $100,000.
21.
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be taken to be an original; but such counterparts
shall together constitute one and the same document.
IN
WITNESS WHEREOF, this Agreement has been executed by the Employer, by its duly
authorized officer, and by the Executive, as of the Effective Date.
__/s/
Xxxxxxx X.
Moran_____________ ALLION
HEALTHCARE, INC.
Xxxxxxx
X.
Xxxxx
By:
__/s/ Xxxxx X.
Spencer___________________________
Name: Xxxxx
X.
Xxxxxxx
Title:
Chief Financial Officer
