Exhibit
10.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT ("Agreement") is made and entered into effective as of
the
1st day of March, 2007, by and between EARL REFSLAND a resident of Missouri
("Executive") and ALLIED HEALTHCARE PRODUCTS, INC., a Delaware corporation,
for
itself and on behalf of any of its current or future subsidiary corporations
(collectively referred to in this Agreement as the "Company").
WITNESSETH:
WHEREAS,
the Company is engaged in the business of designing, manufacturing and
distributing a variety of respiratory products used in the health care industry
in a wide range of hospital and alternate site settings, including, but not
limited to, sub-acute care facilities, home health care and emergency medical
care (the "Business");
WHEREAS,
the Executive has been employed by the Company as the Company's President and
Chief Executive officer; and
WHEREAS,
the Company and the Executive desire that such employment relationship continue
in accordance with the provisions of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual promises,
covenants, and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged
by
the parties hereto, the Company and Executive agree as follows:
1.
Term
.
The
term of Executive's employment with the Company shall continue from the
effective date of this Agreement, March 1, 2007, (hereinafter the "Effective
Date"), and will terminate three (3) years thereafter, subject to renewal at
that time for successive one year terms unless either party shall have notified
the other in writing not less than thirty (30) days prior to the then current
expiration date of this Agreement of such party's determination not to renew
this Agreement (hereinafter the “Term”).
2.
Duties
of Executive
.
During
the Term, Executive shall serve as the Chief Executive Officer and President
of
the Company, and shall have, subject to the directives of the Board of Directors
of the Company (the "Board"), supervision and control over, and responsibility
for, the general management and operation of the Company, and shall have such
other powers and duties as may from time to time be prescribed by the Board.
Executive shall devote his full working time and best efforts, skill and
attention to the Business and interests of the Company. Executive shall follow
and act in accordance with all policies established by the Company from time
to
time. During the Term, Executive shall not actively engage in or be involved
in
any business activities other than on behalf of the Company unless prior written
consent is provided by the Board;
provided
,
however
,
Executive may continue to serve on the boards of directors of other companies,
provided such position does not involve active management, may serve as a
director of other organizations with the prior consent of the Company, such
consent not to be unreasonably withheld, and may engage in such charitable
endeavors and/or other passive ownership activities, provided such activities
do
not, whether individually or in the aggregate, materially interfere with
Executive's duties hereunder. In addition, during the Term, the Company agrees
to use reasonable efforts to cause Executive to be nominated to the Board and
to
remain on the Board.
3.
Compensation
.
As
consideration for the services rendered by Executive pursuant to this Agreement,
the Company agrees to pay to Executive an initial salary at the rate of Three
Hundred Fifty-Five Thousand Dollars ($355,000) for the first year of the Term
("Annual Salary"), which amount shall be payable in accordance with the
Company's normal payroll practices in effect from time to time. Executive's
annual salary for the remainder of the Term will be determined at the sole
discretion of the Board, but in no event will Executive's annual salary be
reduced below the initial annual salary amount stated herein. All payments
of
compensation will be subject to normal employee withholding and all other
applicable tax deductions.
4.
Fringe
Benefits
.
During
the Term, Executive may participate in the fringe benefit programs that may
generally be made available by the Company to management level employees of
the
Company from time to time (collectively, "Fringe Benefits"). Executive's
participation in the Fringe Benefits offered by the Company shall be in
accordance with the participation guidelines that the Company may establish
from
time to time and may require a financial contribution by Executive. In the
event
of the death of the Executive during the Term of this Agreement, the Company
agrees to notify his heirs or representative of any rights he may have under
this Agreement, any employee benefits under employee benefits sponsored by
the
Company to the extent applicable to a deceased employee, and with regard to
stock options or restricted shares applicable to Executive.
5.
Other
Compensation
.
(a)
Incentive
Compensation
.
Commencing on and after the first anniversary of the Effective Date, Executive
shall be entitled to receive, in addition to his Annual Salary, such incentive
compensation payments as the Board, in its sole discretion, may determine
appropriate or necessary and such stock options, restricted shares or other
benefits as the Board shall determine.
(b)
Perquisites
.
The
Company agrees that: (i) during the Term, the Company shall furnish to the
Executive an automobile of a type mutually acceptable to the Company and the
Executive and the Company shall pay all of the expenses for gasoline, insurance,
maintenance and repairs for such automobile, and (ii) at such time, and for
so
long as, the Board, in its discretion, determines necessary or appropriate,
the
Company will pay the monthly assessment and/or other monthly charges of the
Executive for his existing membership in Algonquin Golf Club.
(c)
Vacations
.
During
the Term, the Executive shall be entitled to not less than four (4) weeks of
compensated vacation for each year of employment.
6.
Expenses
.
The
Company agrees to directly pay or reimburse Executive for necessary and
reasonable travel, entertainment and other business expenses actually incurred
by Executive in connection with Executive's duties hereunder and approved by
the
Company pursuant to the Company's existing practices. The Company shall
reimburse Executive for such approved business expenses within a reasonable
time
after submission by Executive of true and correct supporting documentation
as
may be required by the Company. Without limiting the foregoing, the Company
will
pay as its own expense for any professional services reasonably incurred and
related to the Executive’s obligations under the Sarbanes-Oxley Act of 2002 and
such regulations and rules promulgated thereunder; provided, however, that
such
expenses shall be incurred only with the consent of the Company and using
counsel or other professional advisors approved by the Company, which consent
and approval shall not be unreasonably withheld.
7.
Confidentiality
.
Executive acknowledges and agrees that:
(a)
Executive
has created and will continue to create, has and will continue to have access
to, and has received and will continue to receive information, documents, and
materials of a confidential and proprietary nature to the Company and which
may
contain trade secrets of the Company or the Company's customers, including,
without limitation, designs, drawings, formulas, plans, financial information,
processes, methods, customer lists, prospective customers and other prospects,
business plans and other information (collectively, "Confidential Information"),
which would not have been or be disclosed to Executive except for Executive's
employment with the Company.
(b)
Executive
hereby acknowledges and agrees that Confidential Information is an asset of
the
Company, is of a confidential nature and is not generally known to the public,
and, in order to protect and preserve the goodwill of the Company, must be
kept
strictly confidential and used only in the conduct of the Company's business
from time to time.
(c)
Executive
hereby agrees that during his lifetime he will not disclose or reveal in any
manner whatsoever any of the Confidential Information to any third party, except
in the course of and during Executive's employment with the Company or as
required by law, including without limitation, pursuant to an order of the
Court
or other body having jurisdiction over the matter or lawful process or subpoena.
Executive shall not use any of the Confidential Information in any manner for
his own benefit or for the benefit of any other person or entity.
(d)
Executive
will promptly return to the Company all written or recorded Confidential
Information, including all copies and reproductions thereof in Executive's
possession or under Executive's control, upon the earlier of the Company's
request or upon the termination of Executive's employment with the Company.
At
such time, Executive shall also give the Company all notes, summaries and
analyses prepared by Executive which relate to or include Confidential
Information.
(e)
The
Executive has no obligation, express or implied, to refrain from using or
disclosing to others any knowledge or information (i) which is or hereafter
shall become available to the public otherwise than by disclosure by the
Executive in breach of this Agreement, (ii) was available to the Executive
on a
nonconfidential basis prior to it disclosure to the Executive through his status
as an officer of the Company, or (iii) was available or becomes available to
the
Executive on a nonconfidential basis from a third party (other than the Company)
who is not bound by any confidentiality obligation to the Company.
8.
Survival
of Confidentiality Provisions
.
Executive acknowledges and agrees that the provisions of paragraph 7 herein
will
survive the termination of Executive's employment hereunder and will continue
in
full force and effect during and throughout Executive's lifetime.
9.
Covenants
Against Competition and Solicitation
.
Executive covenants and agrees that, at all times while he is employed by the
Company hereunder and for a period of two (2) years after the effective date
of
the termination of Executive's employment (whether or not such occurs after
the
Term of this Agreement), he will not, directly or indirectly, in association
or
in combination with any other person or entity, as an officer, director or
shareholder of a corporation, as a member or manager of a limited liability
company, or as an employee, agent, independent contractor, consultant, advisor,
joint venturer, partner or otherwise, whether or not for pecuniary benefit,
whether or not alone or in association with any person or entity:
(a)
Carry
on,
be engaged in, concerned or take part in, or render services, advise or lend
money to any person or entity engaged in the Business currently engaged in
by
the Company or any business in which the Company may engage while Executive
is
employed by the Company hereunder;
provided
,
however
,
and
notwithstanding the foregoing, after the Executive is no longer employed with
the Company, Executive may carry on, be engaged in, concerned or take part
in,
or render services, advise or lend money to any person or entity engaged in
the
business of manufacturing respiratory products which do not compete, directly
or
indirectly, in any manner with any product or service of the Company which,
individually or in the aggregate, generated gross revenues to the Company in
excess of Five Hundred Thousand Dollars ($500,000) annually as of the effective
date of Executive's termination of employment with the Company.
(b)
Engage
in
or own, in whole or in part, manage, provide financing to, operate or otherwise
carry on the business of designing, manufacturing and distributing respiratory
products used in the health care industry and which, individually or in the
aggregate, generated annual gross revenues to the Company in excess of Five
Hundred Thousand Dollars ($500,000) annually, except: (i) in the course of
Executive's performance of his duties during his employment and then only for
the benefit of the Company; and (ii) as a holder of less than 1% of the stock
of
any corporation whose securities are traded on a national securities
exchange.
(c)
Solicit,
assist the solicitation of, or encourage any employee or independent contractor
of the Company to terminate or otherwise modify that person's or entity's
employment with or retention by the Company for the purpose of encouraging
that
person or entity to become employed or retained by any other person or entity
unrelated to the Company.
(d)
Solicit,
assist the solicitation of, or encourage any person or entity who was a material
customer of the Company within the one (1) year period immediately preceding
the
date as of which Executive's employment is terminated hereunder, to: (i) provide
the same or similar services as provided by the Company in material competition
with the Company; (ii) modify in any material manner that person's or entity's
business relationship with the Company; or (iii) materially modify the terms
or
reduce the volume of business which that person or entity transacts with the
Company.
(e)
The
geographic scope of the covenants contained in subparagraphs (a) and (b) above
shall extend to any state, county, municipality or other locality within or
without the United States wherein the Company sold or actively attempted to
sell
products which, individually or in the aggregate, generated annual gross
revenues to the Company in excess of Five Hundred Thousand Dollars ($500,000)
annually.
(f)
If
Executive terminates his employment with the Company for Good Reason (other
than
and excluding on account of a Change of Control), and irrevocably and
unconditionally waives, in writing, his right to the payment and other benefits
on account of termination of employment for Good Reason as set forth in this
Agreement, then the covenants contained in this Section 9 shall
terminate.
10.
Discoveries
and Inventions
.
Executive agrees that all developments, discoveries and inventions relating
to
the Company's Business (collectively referred to as the "Inventions") which
Executive conceives or makes while employed by the Company shall be the
exclusive property of the Company whether the Company, in its sole discretion,
decides to pursue or not to pursue a patent, copyright, trademark, service
mark
or other registered embodiment of any kind of any country for such Invention.
Whenever requested by the Company, whether during or subsequent to Executive's
employment with the Company, Executive shall execute patent applications and
other instruments considered necessary by the Company to apply for and obtain
patents of the United States and foreign countries covering any such
developments, discoveries or inventions. Executive agrees to assign, and does
hereby assign to the Company, all title, interest and rights, including
intellectual property rights, in and to any and all Inventions, and Executive
agrees to assign to the Company any patents or patent applications arising
from
any such Inventions, and agrees to execute and deliver all such assignments,
patents, patent applications and other documents as the Company may direct.
Executive agrees to cooperate fully with the Company, both during and after
Executive's employment with the Company is terminated, to enable the Company
to
secure and maintain rights in any such Inventions in any and all countries.
Without limiting the foregoing, Executive hereby acknowledges that all works
of
authorship or invention which relate in any manner to the Company's Business
which are developed or written during the term of Executive's employment with
the Company are "works made for hire". Accordingly, Executive agrees to assign,
and does hereby assign to the Company, any and all copyright rights and all
other rights and all material prepared by Executive during the term of
Executive's employment which relate to the Business of the Company.
11.
Employer's
Remedy
.
Executive acknowledges and agrees that the covenants set forth in paragraphs
7,
8, 9 and 10 are necessary to protect the Company's legitimate business
interests, including, without limitation, the Company's strong interest in
the
Confidential Information and Inventions and the Company's strong interest in
maintaining an undisrupted work place. Executive acknowledges and agrees that
the covenants are reasonable in scope, area, and duration, particularly in
light
of Executive's responsibilities and the international scope of the Company's
business. Executive acknowledges that the services to be rendered by him in
accordance with the provisions of this Agreement are of a special and unique
character, and that the restrictions and obligations on his activities as
contained in paragraphs 7, 8, 9 and 10 are reasonable and are required for
the
Company's protection. Executive hereby agrees that if he violates any of the
provisions contained in paragraphs 7, 8, 9 and 10, the Company may seek from
the
arbitrator damages, at law or in equity; provided, however, that the Company
may
seek injunctive relief and seek to enjoin Executive from engaging in any
activity in violation of this Agreement and without regard to the provisions
of
Paragraph 13 of this Agreement. For purposes of an action seeking such
injunctive relief, Executive hereby irrevocably submits to the jurisdiction
of
the Circuit Court of the County of St. Louis, Missouri. All rights and remedies
of the Company hereunder, at law or in equity, are cumulative in nature and
will
in no way be, or be deemed to be, the exclusive rights and remedies of the
Company. If any court finds that the restrictions set forth in paragraphs 7,
8,
9 and 10 are unreasonable, this Agreement will be interpreted to include the
restrictions contained herein to the extent such restrictions are permissible
under law, giving effect to the intent of the parties that the restrictions
contained herein shall be effective to the fullest extent possible.
12.
Termination
of Employment
.
(a)
Termination
By Company without Cause
.
The
Company shall have the right to terminate Executive's employment hereunder
without Cause (as defined below) upon providing Executive with written notice
thereof. Any such termination of employment shall be effective on the date
specified in such notice, or if no date is specified, then upon receipt by
Executive of such notice. In the event of any such termination of employment,
(i) the Company shall continue to pay to Executive, for the period (the
"Continuation Period") beginning on the effective date of such termination
of
employment and ending two (2) years after the effective date of such termination
of employment an amount per month equal to one-twelfth of Executive's then
Annual Salary during the Continuation Period in accordance with the provisions
of Section 3 hereof; (ii) throughout the Continuation Period, Executive shall
be
entitled to continued participation under all Fringe Benefit programs in which
he participates in accordance with the terms thereof to the extent such
participation is allowed pursuant to the terms thereof and applicable law with
no increase in any amounts payable by the Company with respect thereto as a
result of Executive no longer being employed by the Company, or if Executive
is
not allowed continued participation pursuant to the terms thereof and applicable
law, then under another reasonably equivalent plan providing for the same or
similar coverage but with no increase in any amounts payable by the Company
with
respect thereto as a result of Executive no longer being employed by the
Company; (iii) the Company shall pay to Executive his unpaid Annual Salary,
if
any, earned prior to the effective date of the termination of Executive's
employment in accordance with the Company's normal policies for same; (iv)
the
Company shall pay to Executive any incentive compensation payments to which
Executive is entitled as of the effective date of the termination of Executive's
employment in accordance with the Company's normal policies for same; and (v)
the Company shall pay to Executive any business expenses remaining unpaid on
the
effective date of the termination of Executive's employment for which Executive
is entitled to be reimbursed under Section 6 of this Agreement;
provided
,
however
,
that
without limiting any other remedy available hereunder, such payments shall
immediately terminate upon a breach or violation by Executive of the provisions
of Sections 7, 8, 9 or 10 hereof and, in such event, the Company shall be
entitled, in addition to any other remedies it may have, to reimbursement from
Executive of the amount paid by the Company to Executive during the Continuation
Period pursuant to subparagraph (i) above. Notwithstanding anything in this
Agreement
to the contrary, if the Company terminates the Executive without cause within
30
days after a Change in Control, the Executive will be entitled to be paid his
salary for two (2) years as provided for in Subparagraph 12(a)(i) above.
(b)
Termination
by Company for Cause
.
The
Company may terminate this Agreement for Cause (as defined below) upon providing
Executive with written notice thereof. Any such termination of employment shall
be effective on the date specified in such notice, or if no date is specified,
then upon receipt by Executive of such notice. In the event of such termination
of employment, the Company shall pay to Executive (i) his unpaid Annual Salary
through the effective date of such termination of employment, and (ii) any
business expenses remaining unpaid on the effective date of such termination
of
employment for which Executive is entitled to be reimbursed under Section 6
of
this Agreement.
(c)
Death
or Disability
.
Executive's employment with the Company shall terminate upon the death or
Disability (as hereinafter defined), of Executive. Such termination of
employment shall be effective as of the date of Executive's death, or in the
event of Executive's Disability, upon the Company's giving Executive 30 days
written notice thereof. In the event of such termination of employment due
to
death or Disability, Executive (or his estate or other designated beneficiary
upon his death) shall be entitled to receive: (i) his Annual Salary and accrued
expense reimbursements earned or accrued through the effective date of the
termination of Executive's employment, (ii) any incentive compensation payments
to which Executive is entitled as of the effective date of the termination
of
Executive's employment; and (iii) such payments, if any, as may be provided
for
pursuant to all Fringe Benefit programs in which Executive is participating
as
of the effective date of the termination of Executive's employment. All such
Annual Salary, incentive compensation and/or Fringe Benefit payments payable
upon termination of Executive's employment as aforesaid shall be paid at or
following the date of such termination of employment in accordance with the
Company's normal policies.
(d)
Termination
by Executive for Good Reason
.
Executive shall have the right to terminate his employment hereunder for Good
Reason (as defined below), if (A) Executive shall have given the Company prior
written notice of the reason therefor and (B) a period of thirty (30) days
following receipt by the Company of such notice shall have lapsed and, except
for the occurrence of a Change of Control (as hereinafter defined), the matters
which constitute or give rise to such "Good Reason" shall not have been cured
or
eliminated by the Company;
provided
,
however
if such
matters are of a nature that the same cannot be cured or eliminated within
such
thirty (30) day period, such period shall be extended for so long as the Company
shall be endeavoring in good faith to cure or eliminate such matters,
provided
,
further
,
however
,
that
for the first such failure during each calendar year during the Term, the
Company shall have thirty (30) days after receipt of written notice of such
failure to cure such failure, and thereafter during that calendar year no such
notice and cure period shall be given. In the event the Company shall not take
such actions within such period, Executive may send another notice to the
Company electing to terminate his employment hereunder and, in such event,
Employee's employment hereunder shall terminate and the effective date of such
termination of employment shall be the third business day after the Company
shall have received such notice. In the event of any such termination of
employment, Executive shall be entitled to receive the same payments and
benefits, subject to the same conditions and limitations, as provided in Section
12(a) hereof.
(e)
Termination
by Executive without Good Reason
.
Executive shall have the right to terminate his employment hereunder without
Good Reason by giving the Company thirty (30) days prior written notice to
that
effect. Such termination of employment shall be effective on the date specified
in such notice. In addition, the Executive shall be deemed to have terminated
this Agreement without Good Reason if the Executive provides notices to the
Company that he does not wish to extend the Term of this Agreement in the
absence on an event which otherwise constitutes Good Reason. In the event of
such termination of employment, then the Company shall pay to Executive: (i)
his
unpaid Annual Salary through the effective date of such termination of
employment, and (ii) any business expenses remaining unpaid on the effective
date of such termination of employment for which Executive is entitled to be
reimbursed under Section 6 of this Agreement.
(f)
Expiration
of the Term
.
Upon
the termination of Executive's employment at the Expiration Date, Executive
shall be entitled to receive: (i) his Annual Salary and accrued expense
reimbursements earned or accrued through the effective date of such termination
of Executive's employment, (ii) any incentive compensation payments to which
Executive is entitled as of the effective date of such termination of
Executive's employment; and (iii) such payments as may be provided for pursuant
to all Fringe Benefit programs in which Executive is participating as of the
effective date of the termination of Executive's employment. All such Annual
Salary, incentive compensation and/or Fringe Benefit payments payable upon
termination of Executive's employment as aforesaid shall be paid at or following
the date of such termination of employment in accordance with the Company's
normal policies.
(g)
Definitions
:
(i)
"Cause"
shall mean: (A) theft, embezzlement, fraud or misappropriation of funds of
the
Company; (B) conviction of a felony or other crime involving moral turpitude;
(C) chemical or alcohol dependency which adversely affects performance of
Executive's duties; (D) failure to substantially perform (other than as a result
of physical or mental illness) the duties required under Section 2 hereof in
any
material manner; (E) a material breach or violation by Executive of Sections
7,
8, 9 or 10 hereof; (F) the Company is convicted of any criminal felony liability
due to actions taken or failed to be taken by Executive without the consent
of
the Company; and (G) failure of Executive (other than as a result of physical
or
mental illness) to devote substantially all of his working time to the
performance of his duties required hereunder.
(ii)
“Change
of Control” for this Agreement and any other Agreement (including the Incentive
Stock Plan) involving Executive means:
(A)
the
acquisition by an individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the
"Exchange Act")) (a "Person")
other
than Clayton Management Company (or any other Person or entity controlled by
or
under common control with John D. Weil or by a trustee or personal
representative designated by said John D. Weil in the event of the death or
disability of John D. Weil) of ownership of more than fifty percent (50%) of
the
outstanding common stock of the Company (as beneficial ownership is determined
under Section 13(d) of the Securities Exchange Act);
(B)
a
merger or consolidation of the Company with another Person (regardless of
whether the Company or another entity is the surviving or resulting entity
of
such merger or consolidation) other than a merger or consolidation in which
immediately upon giving effect to such merger or consolidation, the Persons
who
were holders of the common stock of the Company immediately prior thereto
continue to be the direct or indirect holders of at least sixty percent
(60%)
of
the
surviving or resulting entity; or
(C)
a
sale of
all or substantially all the assets and operations of the Company to a
Person.
A
transaction pursuant to which the Company ceases to be required to file periodic
or interim reports under the Securities Exchange Act of 1934 shall not
constitute a “Change of Control” unless accompanied by a transaction in the form
of (A), (B) or (C) above.
(iii)
"Disability"
shall mean that, as a result of Executive's incapacity due to physical or mental
illness (as determined by a physician mutually acceptable to the Company and
Executive), Executive shall have been absent from, or does not perform, his
duties as described hereunder on a substantially full-time basis for 75 days
during any consecutive 150 day period during the Term, and within ten (10)
days
after the Company notifies Executive in writing that it intends to replace
him,
shall not have returned to the performance of such duties on a full-time
basis.
(iv)
"Good Reason" shall mean the occurrence of any of the following: (A) a material
breach by the Company in the performance of its obligations hereunder and the
Company's failure to cure said breach within thirty (30) days after receipt
of
written notice of such breach; provided, however if such matters are of a nature
that the same cannot be cured or eliminated within such thirty (30) day period,
such period shall be extended for so long as the Company shall be endeavoring
in
good faith to cure or eliminate such matters, provided, further, however, that
for the first such failure during each calendar year during the Term, the
Company shall have thirty (30) days after receipt of written notice of such
failure to cure such failure, and thereafter during that calendar year no such
notice and cure period shall be given; or (B) the occurrence of a Change of
Control provided Executive elects, within one hundred thirty five (135) days
after the effective date of such Change of Control, to terminate his employment
hereunder; said election to be evidenced by written notice of same from
Executive to the Company within said one hundred thirty five (135) day period;
(C) the Company requests Executive to relocate to an office outside the St.
Louis metropolitan area; (D) an assignment to the Executive of any duties which
are not appropriate for someone in the position of President and Chief Executive
Officer or the Executive’s duties, responsibilities, status, titles or authority
with the Company hereunder are materially diminished; (E) the Executive is
required to report, directly or indirectly, to persons other than the Board
or
any other person shall be appointed to a position, or granted or allowed to
assume duties, responsibilities, status, titles or authority, equal to or
superior to the Executive’s (provided that a non-executive Chairman of the Board
shall not be deemed to be such other person); (F) there is any failure to
nominate or elect the Executive as President and Chief Executive Officer of
the
Company and as a member of the Board (and the Executive Committee thereof,
if
such committee exists); (G) the Executive is removed from any of the positions
he holds pursuant hereto, except in connection with the termination of the
Executive for Cause; (H) the Company fails to assign this Agreement to a
successor to the Company, or a successor to the Company fails to expressly
assume and agree to be bound by this Agreement in writing; or (I) the Company
provides notices to the Executive that it does not wish to extend the Term
of
this Agreement.
13.
Arbitration
of Disputes
.
The
Executive and the Company shall resolve any claim, controversy or dispute
whether concerning, arising out of, or relating to this Agreement, the
employment relationship between the parties or alleging the violation of either
a statutory or common law duty or both, by arbitration, except for the remedy
at
law or in equity as provided for in paragraph 11 herein which the Company may
determine to be enforced by any court having applicable jurisdiction. Executive
or the Company shall invoke this right to arbitrate any such claim, controversy
or dispute only after first attempting to resolve it through the exhaustion
of
any Executive problem solving policy that the Company may establish from time
to
time without obtaining a satisfactory result. The Missouri Uniform Arbitration
Act in effect when any arbitration occurs shall govern the procedures of any
arbitration between the parties. Any arbitration held in accordance with this
paragraph shall take place in St. Louis, Missouri, and shall be conducted by
a
single arbitrator.
The
arbitrator may award full reimbursement to the prevailing party for
out-of-pocket expenses and losses, including, without limitation, reasonable
attorneys' fees, costs, and expenses arising from the preparation and
arbitration of the dispute. "Prevailing party" within the meaning of this
section includes, without limitation, a party who (i) agrees to dismiss an
action upon the other party's payment of all or a substantial portion of the
sums allegedly due or the other party's substantial performance of the covenants
allegedly breached, or (ii) who obtains substantially the relief sought by
it.
14.
Prior
Agreements
.
Executive represents and warrants to the Company that Executive is not presently
a party to any agreement containing a non-competition provision or other
restriction with respect to: (a) the nature of any services or business that
Executive is entitled to perform or conduct for the Company, or (b) the
disclosure or use of any information which directly or indirectly relates to
the
nature or business of the Company or the services to be rendered by Executive
to
the Company. Executive further certifies that he has not disclosed or used,
and
will not disclose or use during his employment with the Company, any
confidential information that he acquired as a result of any previous employment
or under a contractual obligation of confidentiality before Executive's
employment by the Company.
15
.
Notice
.
Any
notice, agreement, or other communication provided for in this Agreement shall
be given in writing and will be considered effectively given the day of delivery
if sent via an overnight delivery service, the actual time of receipt of a
facsimile transmission, or on the third day after mailing is sent by registered
or certified mail, postage prepaid return receipt requested and addressed to
the
parties as follows:
|
If
to the Company:
|
with
a copy (which shall not
constitute
notice) to:
|
|
|
|
|
Allied
Healthcare Products, Inc.
1720
Sublette Avenue
St.
Louis, Missouri 63110
Attn:
Chairman of the Board
Fax:
(314) 771-1241
|
Joseph
D. Lehrer, Esq.
Greensfelder,
Hemker & Gale, P.C.
2000
Equitable Building
10
South Broadway
St.
Louis, Missouri 63102
Fax:
(314) 241-8624
|
|
|
|
|
If
to Executive:
|
with
a copy (which shall not
constitute
notice to:
|
|
|
|
|
Earl
Refsland
7
Algonquin Woods
Glendale,
Missouri 63122
|
James
F. Bennett
Dowd
Bennett LLP
7733
Forsyth Blvd.
Suite
1410
St.
Louis, Missouri 63105
Fax:
(314) 863-2111
|
or
to
another person or address as the Company or Executive may
designate.
16.
Governing
Law
.
This
Agreement will be governed by, and construed and interpreted according to,
the
laws and decisions of the State of Missouri without regard to the choice of
law
provisions thereof.
17.
Counterparts;
Facsimile Signatures
.
This
Agreement may be executed by the parties hereto on any number of separate
counterparts, and all such counterparts so executed constitute one agreement
binding on all the parties hereto notwithstanding that all the parties hereto
are not signatories to the same counterpart. This Agreement and any other
document to be executed in connection herewith may be delivered by facsimile
and
documents delivered in such manner shall be binding as though an original
thereof had been delivered.
18.
Entire
Agreement
.
This
Agreement, and any agreements or documents referred to herein or executed
contemporaneously herewith, constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral. There
are
no conditions, covenants, agreements, representations, warranties or other
provisions, express or implied, collateral, statutory or otherwise relating
to
the subject matter hereof except as herein provided. Without limiting the
foregoing, the Prior Employment Agreement is expressly superseded by this
Agreement and is of no further force or effect. Nothing in this Agreement,
however, shall prevent or limit the executive’s continuing or future
participation in any bonus, incentive, equity, insurance, pension, retirement,
profit sharing, savings, health, dental, disability, welfare, fringe, or other
benefit plan, policy, practice or arrangement of the Company or any of its
subsidiaries or other Affiliates, nor shall anything herein limit or reduce
such
rights as the Executive may have under any other agreement with the Company
or
any of it subsidiaries or other Affiliates. Amounts which are vested benefits
or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or arrangement of the Company or any of its subsidiaries or other
Affiliates shall be payable in accordance with such plan, policy, practice
or
arrangement except as expressly modified by this Agreement.
19.
Assignability
and Enforceability.
This
Agreement shall inure to the benefit of the Company and its successors and
assigns. The Company shall require any successor (whether direct or indirect,
by
purchase, merger, consolidation or otherwise) to all or substantially all of
the
business or assets of the Company to expressly assume and agree in writing
to
perform the Company’s obligations hereunder in the same manner and to the same
extent that the Company would be required to perform them if no such succession
had taken place, and shall deliver to the Executive a copy of any document(s)
embodying such assumption. As used in this Agreement, “the Company” shall mean
both Allied Healthcare Products, Inc. and any such successor that assumes this
Agreement, by operation of law or otherwise. This Agreement and all rights
of
the Executive hereunder shall inure to the benefit of all be enforceable by
the
Executive’s personal legal representatives, executors, administrators,
successors, heirs, distributes, devisees and legatees.
20.
Severability
.
If any
provision contained in this Agreement is held to be invalid or unenforceable,
that provision will be severed from this Agreement and that invalidity or
unenforceability will not affect any other provision of this Agreement, the
balance of which will remain in and have its intended full force and affect;
provided, however, if any invalid or unenforceable provision may be modified
so
as to be valid and enforceable as a matter of law, that provision will be deemed
to have been modified to the extent necessary so as to be valid and enforceable
to the maximum extent permitted by law.
21.
Non-Waiver
.
Failure
to enforce any of the provisions of this Agreement at any time shall not be
interpreted to be a waiver of such provision or to affect either the validity
of
this Agreement or the right of either party thereafter to enforce each and
every
provision of this Agreement.
22.
Attorneys'
Fees
.
If
either party hereto brings any action to enforce his or its rights hereunder,
the prevailing party in any such action shall be entitled to recover his or
its
reasonable attorneys' fees and costs incurred in connection with such
action.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
THIS
AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE
PARTIES.
|
ALLIED
HEALTHCARE PRODUCTS, INC.
|
EXECUTIVE
|
|
By:
|
_________________________
|
__________________________
|
|
Name:
|
_________________________
|
Earl
Refsland
|
|
Title
|
_________________________
|
|
