Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made effective
as of September 2, 2003 (the "Effective Date"), between CURATIVE HEALTH SERVICES
CO., a Minnesota corporation (the "Company"), and Xxxx Xxxxx ("Executive").
WHEREAS, the Company wishes to retain Executive as a key employee; and
WHEREAS, the Company and Executive want the terms and conditions of
Executive's employment to be governed by this Agreement;
WHEREAS, the Company is a wholly owned subsidiary of Curative Health
Services, Inc. (formerly Curative Holding Co.), a Minnesota corporation
("Curative Holding");
NOW, THEREFORE, in consideration of the promises and the
mutual covenants and agreements herein contained, intending to be legally bound,
the Company and Executive hereby agree as follows:
1. Employment
1.1 Employment and Duties. The Company hereby agrees to employ
Executive for the Term (as hereinafter defined) as Senior Vice President -
Information Systems and Chief Information Officer, subject to the direction of
the Chief Executive Officer, and in connection therewith, to perform such duties
as she shall reasonably be directed by the Chief Executive Officer to perform.
Executive hereby accepts such employment and agrees to render such services.
Executive shall perform duties and carry out her responsibilities hereunder in a
diligent manner, shall devote her exclusive and full working time, attention and
effort to the affairs of the Company and its subsidiaries and affiliates, shall
use her best efforts to promote the interests of the Company and its
subsidiaries and affiliates, and shall be just and faithful in the performance
of her duties and in carrying out her responsibilities.
1.2 Location. The principal location for performance of Executive's
services hereunder shall be at the Company's office in Woodside, California, or
at such other location as Executive and the Chief Executive Officer shall agree,
subject to reasonable travel requirements during the course of such performance.
2. Employment Term
The term of Executive's employment hereunder (the "Term") shall be
deemed to commence on the Effective Date and shall end on the first anniversary
of the Effective Date, unless sooner terminated as hereinafter provided;
provided, however, that the Term shall be automatically renewed and extended for
an additional period of one (1) year on the first anniversary unless either
party gives a Notice of Termination (as defined below) to the other party prior
to the first anniversary.
3. Compensation and Benefits
3.1 Cash Compensation.
(a) Base Salary. The Company shall pay Executive an
annual salary of $200,000.00 payable in bi-weekly
installments, in arrears (the "Base Salary"). The
Base Salary shall be reviewed annually by Curative
Holding's Board of Directors and may be increased,
but not decreased (unless mutually agreed upon by
Executive and the Company).
(b) Bonus Plan. Executive shall be entitled to
participate in the Company's Annual Corporate Bonus
Plan, in accordance with and subject to the terms and
provisions thereof.
3.2 Participation in Benefit Plans. Executive shall be entitled to
participate in all employee benefit plans or programs of the Company and
Curative Holding to the extent that her position, title, tenure, salary, active
employment status and other qualifications make her eligible to participate.
Neither the Company nor Curative Holding guarantees the continuance of any
particular employee benefit plan or program during the Term, and Executive's
participation in any such plan or program shall be subject to all terms,
provisions, rules and regulations applicable thereto. Executive will be entitled
to twenty (20) days of vacation per year, to be used in accordance with the
Company's vacation policy for senior executives as it may change from time to
time. For the Benefit Period, if any, (as hereinafter defined), the Company will
arrange to provide Executive with welfare benefits (including life and health
insurance benefits) of substantially similar design and cost to Executive as the
welfare benefits and other employee benefits available to Executive prior to
Executive's or the Company's, as the case may be, receipt of a Notice of
Termination (as hereinafter defined). In the event that Executive shall obtain
full-time employment providing welfare benefits during the Benefit Period, such
benefits as otherwise receivable hereunder by Executive shall be discontinued.
3.3 Expenses. The Company will pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by her in the
performance of her duties under this Agreement. Executive shall keep detailed
and accurate records of expenses incurred in connection with the performance of
her duties hereunder and reimbursement therefor shall be in accordance with
policies and procedures to be established from time to time by the Board.
3.4 Automobile Expenses. During the Term and in accordance with the
Company's automobile policy, Executive shall be reimbursed by the Company for
the monthly lease expense for an automobile leased in the name of the Executive,
in an aggregate amount not to exceed $500.00 per month.
4. Termination of Employment
4.1 Definitions
(a) "Benefit Period" shall mean (i) the six (6) month period
commencing on the Date of Termination which occurs in connection with a
termination of employment described in the first sentence of Section 4.5(a), or
(ii) the twelve (12) month period commencing on the Date of Termination which
occurs in connection with a termination of employment described in the first
sentence of Section 4.5(b).
(b) "Cause" shall mean any of the following:
(i) any act or failure to act (or series or
combination thereof) by Executive done with the intent to harm in any material
respect the interests of the Company, its subsidiaries or affiliates;
(ii) the commission by Executive of a felony;
(iii) the perpetration by Executive of a dishonest
act or common law fraud against the Company, or any subsidiary or affiliate
thereof;
(iv) a grossly negligent act or failure to act (or
series or combination thereof) by Executive detrimental in any material respect
to the interests of the Company, its subsidiaries or affiliates;
(v) the material breach by Executive of her
agreements or obligations under this Agreement; or
(vi) the continued refusal to follow the directives
of the Chief Executive Officer or Board of Directors that are consistent with
Executive's duties and responsibilities identified in Section 1.1 hereof.
(c) A "Change of Control" shall mean any of the following:
(i) a sale of all or substantially all of the
assets of Curative Holding;
(ii) the acquisition of more than fifty percent
(50%) of the Common Stock of Curative Holding (with all classes or series
thereof treated as a single class) by any person or group of persons, except a
Permitted Shareholder (as hereinafter defined), acting in concert. A "Permitted
Shareholder" means a holder, as of the date the Plan was adopted by Curative
Holding, of Common Stock;
(iii) a reorganization of Curative Holding wherein
the holders of Common Stock of Curative Holding
receive stock in another company (other than a subsidiary of Curative Holding),
a merger of Curative Holding with another company wherein there is a fifty
percent (50%) or greater change in the ownership of the Common Stock of Curative
Holding as a result of such merger, or any other transaction in which Curative
Holding (other than as the parent corporation) is consolidated for federal
income tax purposes or is eligible to be consolidated for federal income tax
purposes with another corporation;
(iv) in the event that the Common Stock is traded
on an established securities market, a public announcement that any person has
acquired or has the right to acquire beneficial ownership of more than fifty
percent (50%) of the then-outstanding Common Stock and for this purpose the
terms "person" and "beneficial ownership" shall have the meanings provided in
Section 13(d) of the Securities and Exchange Act of 1934 or related rules
promulgated by the Securities and Exchange Commission, or the commencement of
or public announcement of an intention to make a tender offer or exchange offer
for more than fifty percent (50%) of the then outstanding Common Stock;
(v) a majority of the Board of Directors is not
comprised of Continuing Directors. A "Continuing
Director" means a director recommended by the Board of Directors of Curative
Holding for election as a director of Curative Holding by the stockholders; or
(vi) the Board of Directors of Curative Holding, in
its sole and absolute discretion, determines that
there has been a sufficient change in the share ownership of Curative Holding to
constitute a change of effective ownership or control of Curative Holding.
(d) "Good Reason" shall mean, within the twelve (12) month
period immediately following a Change of Control, the occurrence of any one or
more of the following events:
(i) the assignment to Executive of any duties
inconsistent in any respect with Executive's position (including status,
offices, title, and reporting requirements), authority, duties or other
responsibilities as in effect immediately prior to the Change of Control or any
other action of the Company that results in a diminishment in such position,
authority, duties or responsibilities, other than an insubstantial and
inadvertent action that is remedied by the Company promptly after receipt of
notice thereof given by Executive;
(ii) a reduction by the Company in Executive's Base
Salary as in effect on the date hereof and as the
same shall be increased from time to time hereafter;
(iii) the Company's requiring Executive to be based
at a location in excess of fifty (50) miles from the location of Executive's
principal office immediately prior to the Change of Control;
(iv) the failure by the Company to (a) continue in
effect any material compensation or benefit plan, program, policy or practice
in which Executive was participating at the time of the Change of Control or
(b) provide Executive with compensation and benefits at least equal (in terms
of benefit levels and/or reward opportunities) to those provided for under each
employee benefit plan, program, policy and practice as in effect immediately
prior to the Change of Control (or as in effect following the Change of
Control, if greater);
(v) the failure of the Company to obtain a
satisfactory agreement from any successor to the Company to assume and agree to
perform this Agreement; and
(vi) any purported termination by the Company of
Executive's employment that is not effected pursuant to a Notice of Termination
(as defined below).
(e) "Date of Termination" shall mean the date specified in the
Notice of Termination (as hereinafter defined) (except in the case of
Executive's death, in which case Date of Termination shall be the date of
death); provided, however, that if Executive's employment is terminated by the
Company other than for Cause, the date specified in the Notice of Termination
shall be at least thirty (30) days from the date the Notice of Termination is
given to Executive and if Executive's employment is terminated by Executive for
Good Reason, the date specified in the Notice of Termination shall not be more
than sixty (60) days from the date the Notice of Termination is given to the
Company.
(f) "Notice of Termination" shall mean a written notice either
from the Company to Executive, or Executive to the Company, that indicates
Section 2 or the specific provision of Section 4 of this Agreement relied upon
as the reason for such termination or nonrenewal, the Date of Termination, and,
in reasonable detail, the facts and circumstances claimed to provide a basis for
termination or nonrenewal pursuant to Section 2 or this Section 4 of this
Agreement.
4.2 Termination Upon Death or Disability. This Agreement, and
Executive's employment hereunder, shall terminate automatically and without the
necessity of any action on the part of the Company upon the death of Executive.
In addition, if at any time during the Term Executive shall become physically or
mentally disabled, whether totally or partially, so that she is unable
substantially to perform her duties and services hereunder for (i) a period of
six (6) consecutive months, or (ii) for shorter periods aggregating six (6)
months during any twelve (12) month period, the Company may at any time after
the last day of the sixth consecutive month of disability or the day on which
the shorter periods of disability shall have equalled an aggregate of six (6)
months, by written notice to Executive (but before Executive has recovered from
such disability), terminate this Agreement and Executive's employment hereunder.
4.3 Company's and Executive's Right to Terminate-Prior to Change of
Control. Prior to a Change of Control, this Agreement and Executive's employment
hereunder may be terminated at any time by the Company, with or without Cause,
upon thirty (30) days prior written notice to Executive, and by Executive, at
any time, upon thirty (30) days prior written notice to the Company. Any
termination of Executive's employment by the Company without Cause prior to a
Change of Control that occurs at the request or insistence of any person (other
than the Company) relating to such Change of Control shall be deemed to have
occurred after the Change of Control for the purposes of this Agreement.
4.4 Company's and Executive's Right to Terminate-Following a Change of
Control. Following a Change of Control, this Agreement and Executive's
employment hereunder may be terminated at any time (i) by the Company, with or
without Cause, upon thirty (30) days prior written notice to Executive, and (ii)
by Executive for Good Reason upon thirty (30) days prior written notice to the
Company. Executive's right to terminate his employment pursuant to this Section
4.4 shall not be affected by incapacity due to physical or mental illness.
Executive's continued employment following a Change of Control shall not
constitute consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason hereunder.
4.5 Compensation Upon Termination.
(a) Termination Prior to Change of Control. In the event the
Company terminates (or elects not to renew) this Agreement without Cause, and
such termination (or nonrenewal) without Cause occurs prior to any Change of
Control, Executive shall be entitled to receive her Base Salary through the Date
of Termination, the welfare benefits described in Section 3.2 for the Benefit
Period, and not later than thirty (30) days after the Date of Termination, a
lump sum severance payment equal to the sum of six (6) month's of EMPLOYEE's
then current Base Salary plus a pro-rated bonus based on Executive's performance
in the fiscal year in which the Date of Termination occurs. In addition, to the
extent not otherwise required under Curative Holding's Stock Option Plan or any
award agreement with Executive, any unvested stock option awards theretofore
awarded to Executive which would otherwise vest and become exercisable during
the twelve (12) month period commencing on the Date of Termination shall vest
and become exercisable on the Date of Termination. In the event this Agreement
is terminated (or not renewed) for any reason other than by the Company without
Cause, and such termination (or nonrenewal) occurs prior to a Change of Control,
Executive shall not be entitled to the continuation of any compensation, bonuses
or benefits provided hereunder, or any other payments following the Date of
Termination, other than Base Salary earned through such Date of Termination.
(b) Termination Following Change of Control. If this Agreement
is terminated (or not renewed) (i) by the Company without Cause, or (ii) by
Executive for Good Reason during the twelve (12) month period immediately
following a Change of Control, and such termination (or nonrenewal) occurs
following a Change of Control, Executive shall be entitled to receive her full
Base Salary through the Date of Termination, the welfare benefits described in
Section 3.2 for the Benefit Period and, not later than thirty (30) days after
the Date of Termination, a lump sum severance payment equal to the sum of
Executive's then current Base Salary plus a pro-rated bonus based on Executive's
performance in the fiscal year in which the Date of Termination occurs. In
addition, to the extent not otherwise required under the Company's Stock Option
Plan or any award agreement with Executive, any unvested stock option awards
theretofore awarded to Executive shall vest and become immediately exercisable
in full. In the event this Agreement is terminated (or not renewed) for any
reason other than (i) by the Company without Cause, or (ii) by Executive for
Good Reason, and such termination (or nonrenewal) occurs following a Change of
Control, Executive shall not be entitled to the continuation of any
compensation, bonuses or benefits provided hereunder, or any other payments
following the Date of Termination, other than Base Salary earned through the
Date of Termination.
(c) At Executive's option to be exercised by written notice to
the Company, the severance benefits payable under this Section 4.5 shall be paid
in accordance with the Company's normal payroll procedures over the six (6) or
twelve (12) month period, as the case may be, corresponding to the amount of the
payments instead of in a lump sum.
(d) Anything to the contrary contained herein notwithstanding,
as a condition to Executive receiving severance benefits to be paid pursuant to
this Section 4.5, Executive shall execute and deliver to the Company a general
release in form and substance reasonably satisfactory to the Company releasing
the Company, its subsidiaries and affiliates, and their officers, directors,
employees and agents from all liabilities, claims and obligations of any nature
whatsoever, excepting only the Company's or Curative Holding's, as applicable,
obligations under this Agreement, under any Stock Option Agreements, and under
any other employee benefit plans or programs in which Executive participates
under Section 3.2 hereof, subject to all terms and conditions of such plans or
programs and this Agreement.
(e) Anything to the contrary contained herein notwithstanding,
in the event that any payment or benefit received or to be received by Executive
in connection with a Change in Control of the Company or termination of
Executive's employment (whether payable pursuant to the terms of this Agreement
or any other plan, contract, agreement or arrangement with the Company, with any
person whose actions result in a Change in Control of the Company or with any
person constituting a member of an "affiliated group" as defined in Section
280G(d)(5) of the Internal Revenue Code of 1986, as amended (the "Code"), with
the Company or with any person whose actions result in a Change in Control of
the Company (collectively, the "Total Payments") would not be deductible (in
whole or in part) by the Company or such other person making such payment or
providing such benefit solely as a result of Section 280G of the Code, the
amount payable to Executive pursuant to this Section 4.5 shall be reduced until
no portion of the Total Payments is not deductible solely as a result of Section
280G of the Code or such amount payable to Executive pursuant to Section 4.5 is
reduced to zero. For purposes of this limitation, (a) no portion of the Total
Payments the receipt or enjoyment of which Executive shall have effectively
waived in writing prior to the date of payment of the amount pursuant to Section
4.5 shall be taken into account; (b) no portion of the Total Payments shall be
taken into account which in the opinion of tax counsel selected by the Company
and reasonably acceptable to Executive does not constitute a "parachute payment"
within the meaning of Section 280G(b)(2) of the Code; (c) the payment pursuant
to Section 4.5 shall be reduced only to the extent necessary so that the Total
Payments (other than those referred to in the immediately preceding clause (b))
in their entirety constitute reasonable compensation within the meaning of
Section 280G(b)(4)(B) of the Code, in the opinion of the tax counsel referred to
in the immediately preceding clause (b); and (d) the value of any other non-cash
benefit or of any deferred cash payment included in the Total Payments shall be
determined by the Company's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.
5. Employment Covenants
5.1 Trade Secrets and Confidential Information. Executive agrees that
she shall, during the course of her employment and thereafter, hold inviolate
and keep secret all documents, materials, knowledge or other confidential
business or technical information of any nature whatsoever disclosed to or
developed by her or to which she had access as a result of his employment
(hereinafter referred to as "Confidential Information"). Such Confidential
Information shall include technical and business information, including, but not
limited to, inventions, research and development, engineering, products,
designs, manufacture, methods, systems, improvements, trade secrets, formulas,
processes, marketing, merchandising, selling, licensing, servicing, customer
lists, records or financial information, manuals or Curative Holding strategy
concerning its business, strategy or policies. Executive agrees that all
Confidential Information shall remain the sole and absolute property of the
Company. During the course of her employment, Executive shall not use, disclose,
disseminate, publish, reproduce or otherwise make available such Confidential
Information to any person, firm, corporation or other entity, except for the
purpose of conducting business on behalf of the Company. Following the Term,
Executive shall not use, disclose, disseminate, publish, reproduce or otherwise
make available such Confidential Information to any person, firm, corporation or
other entity. Upon termination of her employment with the Company, Executive
will leave with or deliver to the Company all records and any compositions,
articles, devices, equipment and other items which disclose or embody
Confidential Information including all copies or specimens thereof, whether
prepared by her or by others. The foregoing restrictions on disclosure of
Confidential Information shall apply so long as the information has not properly
come into the public domain through no action of Executive.
5.2 Transfer of Inventions. Executive, for herself and her heirs and
representatives, will promptly communicate and disclose to the Company, and upon
request will, without additional compensation, execute all papers reasonably
necessary to assign to the Company or the Company's nominees, free of
encumbrance or restrictions, all inventions, discoveries, improvements, whether
patentable or not, conceived or originated by Executive solely or jointly with
others, at the Company's expense or at the Company's facilities, or at the
Company's request, or in the course of her employment, or based on knowledge or
information obtained during the Term. All such assignments shall include the
patent rights in this and all foreign countries. Notwithstanding the foregoing,
this Section 5.2 shall not apply to any invention for which no equipment,
supplies, facilities or trade secret information of the Company, its
subsidiaries or its affiliates was used and which was developed entirely on
Executive's own time and (a) that does not relate (1) directly to the business
of the Company, its subsidiaries or its affiliates or (2) to the Company's or a
subsidiary or affiliate of the Company's actual or demonstrably anticipated
research or development, or (b) that does not result from any work performed by
Executive for the Company, its subsidiaries or its affiliates.
5.3 Exclusivity of Employment. During the Term, Executive shall not
directly or indirectly engage in any activity competitive with or adverse to the
Company's business or welfare or render a material level of services of a
business, professional or commercial nature to any other person or firm, whether
for compensation or otherwise.
5.4 Covenant Not to Compete. Executive agrees to be bound and abide
by the following covenant not to compete:
(a) Term and Scope. During her employment with the Company and
for a period of two (2) years after the Term, Executive will not render to any
Conflicting Organization (as hereinafter defined), services, directly or
indirectly, anywhere in the world in connection with any Conflicting Product,
except that Executive may accept employment with a large Conflicting
Organization whose business is diversified (and which has separate and distinct
divisions) if Executive first certifies to the Board of Directors in writing
that she has provided a copy of Section 5 of this Agreement to such prospective
employer, that such prospective employer is a separate and distinct division of
the Conflicting Organization and that Executive will not render services
directly or indirectly in respect of any Conflicting Product (as hereinafter
defined). Such two-year time period shall be tolled during any period that
Executive is engaged in activity in violation of this covenant.
(b) Judicial Action. Executive and the Company agree that, if
the period of time or the scope of the restrictive covenant not to compete
contained in this Section 5.4 shall be adjudged unreasonable in any court
proceeding, then the period of time and/or scope shall be reduced accordingly,
so that this covenant may be enforced in such scope and during such period of
time as is judged by the court to be reasonable. In the event of a breach or
violation of this Section 5.4 by Executive, the parties agree than in addition
to all other remedies, the Company shall be entitled to equitable relief for
specific performance, and Executive hereby agrees and acknowledges that the
Company has no adequate remedy at law for the breach of the covenants contained
herein.
(c) Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
"Conflicting Product" means any product, method or process,
system or service of any person or organization other than the
Company which is related to the areas of disease management,
wound care or specialty pharmaceutical services, or the
provision or sale of data in respect thereof, that is the same
as or similar to or competes with a product, method or
process, system or service of or provided by the Company or
any of its subsidiaries or affiliates in existence or under
development at the time Executive's employment with the
Company terminates or about which Executive acquires
Confidential Information.
"Conflicting Organization" means any person or organization
which is engaged in disease management, wound care or
specialty pharmaceutical services, or the provision or sale of
data in respect thereof, and which is, or about to become
engaged in, research on or development, production, marketing,
licensing, selling or servicing of a Conflicting Product.
5.5 Disclosure to Prospective Employers. Executive will disclose to any
prospective employer, prior to accepting employment, the existence of Section 5
of this Agreement. The obligation imposed by this Section 5.5 shall terminate
two (2) years after termination of Executive's employment with the Company;
provided, however, the running of such two-year period shall be tolled to the
extent the covenant not to compete contained in Section 5.4(a) hereof is tolled.
5.6 Non-Solicitation and Noninterference. For one (1) year after
termination of employment with the Company or its subsidiaries or affiliates for
any reason, the Executive shall not, directly or indirectly, on behalf of
Executive or on behalf of any third person, firm or corporation, as an agent or
otherwise:
(a) induce or attempt to induce any employee of the Company or
its subsidiaries or affiliates (as of the date of termination) or any person
who, as of the date of termination, was in the process of being recruited by the
Company or its subsidiaries or affiliates, to terminate or otherwise alter such
employee's employment with the Company or its subsidiaries or affiliates, or in
any way interfere adversely with the relationship between any such employee and
the Company or its subsidiaries or affiliates;
(b) induce or attempt to induce any employee of the Company or
its subsidiaries or affiliates to supply confidential business information or
trade secrets of the Company or its subsidiaries or affiliates to any third
person, firm or corporation;
(c) contact or attempt to contact any customer, supplier,
licensee, licensor, referral source or other business relation of the Company or
its subsidiaries or affiliates for whom Executive directly performed any
services or with whom the Executive had any direct business contact for the
purpose of soliciting business from or inducing such customer, supplier,
licensee, licensor, referral source or other business relation to acquire any
product or service, offered by the Company or its subsidiaries or affiliates,
from any entity other than the Company or its subsidiaries or affiliates, or in
any way interfere with the then existing business relationship between any such
customer, supplier, licensee, licensor, referral source or other business
relation and the Company or its subsidiaries or affiliates;
(d) contact or attempt to contact any actual or prospective
customer, supplier, licensee, licensor, referral source or other business
relation of the Company or its subsidiaries or affiliates, whose identity or
other specific information Executive discovered or gained access to as a result
of Executive's access to the Company's or its subsidiaries or affiliates
Confidential Information, for the purpose of soliciting or inducing any such
customer, supplier, licensee, licensor, referral source or other business
relation to acquire any product or service, offered by the Company or its
subsidiaries or affiliates, from any entity other than the Company or its
subsidiaries or affiliates, or in any way interfere with the then existing
business relationship between any such customer, supplier, licensee, licensor,
referral source or other business relation and the Company or its subsidiaries
or affiliates; or
(e) utilize the Company's or its subsidiaries or affiliates
Confidential Information to solicit, influence or encourage any actual or
prospective customer, supplier, licensee, licensor, referral source or other
business relation of the Company or its subsidiaries or affiliates to divert or
direct business to Executive or any other person, association or entity, by or
with which Executive is employed, associated, affiliated, or otherwise related,
to the exclusion or detriment of Executive.
5.7 Indirect Activity Precluded. Executive agrees that, for one (1)
year after termination of employment with the Company for any reason, Executive
will not, directly or indirectly, assist, solicit or encourage any other person
in carrying out, directly or indirectly, any activity that would be prohibited
by the provisions of this Section 5 if such activity were carried out by
Executive, either directly or indirectly; and, in particular, Executive agrees
that Executive will not, directly or indirectly, induce any employee of the
Company or its subsidiaries or affiliates to carry out, directly or indirectly,
any such activity.
6. Miscellaneous
6.1 Notices. Any notice required or permitted to be delivered hereunder
shall be in writing and shall be deemed to be delivered on the earlier of (i)
the date received, or (ii) the date of delivery, refusal or non-delivery
indicated on the return receipt, if deposited in a United States Postal Service
depository, postage prepaid, sent registered or certified mail, return receipt
requested, addressed to the party to receive the same at the address of such
party set forth below, or at such other address as may be designated in a notice
delivered or mailed as herein provided.
To Company: Curative Health Services, Co.
c/o Curative Health Services, Inc.
000 Xxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Executive Vice President,
General Counsel and Secretary
Executive: Xxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
6.2 Headings. The headings of the articles and sections of this
Agreement are inserted for convenience only and shall not be deemed a part of or
affect the construction or interpretation of any provision hereof.
6.3 Modifications; Waiver. No modification of any provision of this
Agreement or waiver of any right or remedy herein provided shall be effective
for any purpose unless specifically set forth in a writing signed by the party
to be bound thereby. No waiver of any right or remedy in respect of any
occurrence or event on one occasion shall be deemed a waiver of such right or
remedy in respect of such occurrence or event on any other occasion.
6.4 Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof and supersedes all other
agreements, oral or written, heretofore made with respect thereto, including
without limitation, the employment agreement dated February 24, 2003.
6.5 Severability. Any provision of this Agreement prohibited by or
unlawful or unenforceable under any applicable law of any jurisdiction shall as
to such jurisdiction be ineffective without affecting any other provision
hereof. To the full extent, however, that the provisions of such applicable law
may be waived, they are hereby waived, to the end that this Employment Agreement
be deemed to be a valid and binding agreement enforceable in accordance with its
terms.
6.6 Controlling Law. This Agreement has been entered into by the
parties in the State of New York and shall be continued and enforced in
accordance with the laws of that State.
6.7 Assignments. The Company shall have the right to assign this
Agreement and to delegate all rights, duties and obligations hereunder to any
entity that controls the Company, that the Company controls, is under common
control with the Company or that may be the result of the merger, consolidation,
acquisition or reorganization of the Company and another entity. Executive
agrees that this Agreement is personal to her and her rights and interest
hereunder may not be assigned, nor may her obligations and duties hereunder be
delegated (except as to delegation in the normal course of operation of the
Company), and any attempted assignment or delegation in violation of this
provision shall be void.
6.8 Attorney Fees. In the event of litigation between the parties, to
enforce their respective rights under this Agreement, the prevailing party shall
be entitled to receive from the non-prevailing party reimbursement of the
prevailing party's reasonable attorney's fees and costs at all levels of trial
and appeal.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
CURATIVE HEALTH SERVICES, CO.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: President
/s/ Xxxx Xxxxx
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Executive
