Exhibit 10.4
ACKNOWLEDGMENT OF ASSIGNMENT OF
EMPLOYMENT AGREEMENT
This Acknowledgment of Assignment of Employment Agreement
("Acknowledgment") is made as of June 3, 2003, by and between Curative Health
Services, Inc., a Minnesota corporation ("Curative"), and ____________, an
individual resident of the State of _____________ ("Executive").
WHEREAS, Curative and Executive entered into an Employment Agreement dated
___________, as such Employment Agreement may have been amended from time to
time thereafter;
WHEREAS, Executive may be a participant in one or more Curative stock
option plans or agreements;
WHEREAS, Executive currently is employed by Curative as its
_____________________;
WHEREAS, Curative has commenced a reorganization plan (the
"Reorganization"), which would involve the creation of Curative Holding Co., a
Minnesota corporation, ("Curative Holding") following which Curative would
become a wholly owned subsidiary of Curative Holding Co. and Executive would
become an employee of Curative Holding;
WHEREAS, Curative and Executive desire that Executive become an employee
of Curative Holding through an assignment of Executive's Employment Agreement
and without such assignment being viewed as a termination of employment under
the Employment Agreement; and
WHEREAS, Curative and Executive desire that the Reorganization not be
deemed a "Change in Control" for purposes of Executive's Employment Agreement or
any stock option plan or agreement in which Executive may be a participant.
NOW, THEREFORE, in consideration of the foregoing and the mutual terms and
conditions set forth herein, Curative and Executive agree as follows:
1. Assignment of Employment Agreement. Subject to the terms and conditions
hereof, Curative and Executive acknowledge and agree that, pursuant to Section
6.7 of Executive's Employment Agreement, Curative intends to transfer and assign
Executive's Employment Agreement to Curative Holding, effective as of the
Effective Date of the reorganization (as defined in the Plan of Merger to effect
the same) and Executive intends to continue working under the terms of
Executive's Employment Agreement for Curative Holding, as of that date. Curative
and Executive further acknowledge and agree that said transfer and assignment is
not intended by either party to be nor shall it be construed by either party as
a "Termination" under Section 4 of the Employment Agreement.
2. Reorganization Not "Change in Control". Curative and Executive further
acknowledge and agree that neither the Reorganization nor any change in the
ownership, structure, or control of Curative as a result of the Reorganization
shall be deemed to be a "Change in Control" under Section 4.1 of the Employment
Agreement or any Curative stock option plan or agreement in which Executive is a
participant, and Executive specifically acknowledges and agrees that Executive
shall not be entitled to and shall not have the right to claim the compensation
and benefits set forth in Section 4.5(b) of the
Employment Agreement or any Curative stock option plan or agreement as a result
of the Reorganization or any change in the ownership, structure, or control of
Curative as a result of the Reorganization.
3. Stock Option Grant to Executive. In recognition of Executive's past service
to Curative, as an inducement for Executive's continued service to Curative
Holding following the transfer and assignment of Executive's Employment
Agreement, and in consideration of Executive's other promises, obligations, and
agreements set forth in this Acknowledgment, Curative agrees to provide to
Executive 500 incentive options for Curative stock at an exercise price equal to
the closing price of Curative Common Stock on the date of the Compensation
Committee resolutions related hereto and such other terms as may be contained in
the agreement evidencing the grant. Executive acknowledges and agrees that
Executive had no prior entitlement to such stock options and that such stock
options constitute good and sufficient consideration for Executive entering into
this Acknowledgment.
4. Headings. The headings of the articles and sections of this Acknowledgment
are inserted for convenience only and shall not be deemed a part of or affect
the construction or interpretation of any provision of this Acknowledgment.
5. Modifications; Waiver. No modification of any provision of this
Acknowledgment 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 an
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. Entire Agreement. The Acknowledgment 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.
7. Severability. Any provision of this Acknowledgment prohibited by or held
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 Acknowledgment be
deemed to be a valid and binding agreement enforceable in accordance with its
terms.
8. Controlling Law. This Acknowledgment shall be continued and enforced in
accordance with the laws of the State of New York.
9. Attorney Fees. In the event of litigation between the parties, to enforce
their rights under this Acknowledgment, 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 HEREOF, the parties have executed this Acknowledgment effective
as of the date set forth above.
CURATIVE HEALTH SERVICES, INC.
__________________________________ By _______________________________
Executive
Its ______________________________
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