Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Agreement") is made effective as of December 31, 2004 (the "Effective Date"),
between CURATIVE HEALTH SERVICES, INC., a Minnesota corporation (the "Company"),
and ▇▇▇▇ ▇. PRIOR ("Executive").
WHEREAS, the Company and Executive entered into an Amended and
Restated Employment Agreement dated September 1, 1997, as such Amended and
Restated Employment Agreement may have been amended from time to time thereafter
(the "Employment Agreement");
WHEREAS, Executive has been employed by Curative Health
Services Co., a subsidiary of the Company ("Company Subsidiary"), as its
President - Specialty Healthcare Services and has been appointed effective
November 15, 2004 as the Chief Operating Officer of the Company ("COO");
WHEREAS, the Company and Executive desire that Executive
continue as an employee of the Company under the terms of the Employment
Agreement, and
WHEREAS, certain provisions of the Employment Agreement must
be amended to give effect to the appointment of Executive as COO and the
assignment of the Employment Agreement by the Company Subsidiary to the Company;
NOW, THEREFORE, in consideration of the promises and the
mutual covenants and agreements herein contained, the Company and Executive
hereby agree that the Employment Agreement shall be and is hereby amended and
restated in its entirety to read as follows:
1. Employment
1.1 Employment and Duties. The Company hereby agrees to employ
Executive for the Term (as hereinafter defined) as Chief Operating Officer,
subject to the direction of the Chief Executive Officer and/or President, and in
connection therewith, to perform such duties as he shall reasonably be directed
by the Chief Executive Officer and/or President to perform. Executive hereby
accepts such employment and agrees to render such services. Executive shall
perform duties and carry out his responsibilities hereunder in a diligent
manner, shall devote his exclusive and full working time, attention and effort
to the affairs of the Company and its subsidiaries and affiliates, shall use his
best efforts to promote the interests of the Company and its subsidiaries and
affiliates, and shall be just and faithful in the performance of his duties and
in carrying out his responsibilities.
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1.2 Location. The principal location for performance of
Executive's services hereunder shall be at the Company's executive offices,
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 each anniversary unless either party
gives a Notice of Termination (as defined below) to the other party at least
three (3) months prior to such anniversary.
3. Compensation and Benefits
3.1 Cash Compensation.
(a) Base Salary. The Company shall pay Executive an
annual salary of $280,000.00 payable in bi-weekly
installments, in arrears (the "Base Salary"). The
Base Salary shall be reviewed annually by the
Company'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 Executive Bonus
Compensation Program, 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 to the
extent that his position, title, tenure, salary, age, health and other
qualifications make him eligible to participate. The Company does not guarantee
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.
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3.3 Expenses. The Company will pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement. Executive shall keep detailed
and accurate records of expenses incurred in connection with the performance of
his 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, Executive shall be
entitled to the use of an automobile leased in the name of the Company. The
Executive shall be repaid by the Company for all automobile expenses incurred
by the Executive in the performance of his duties under this agreement.
4. Termination of Employment
4.1 Definitions
(a) "Benefit Period" shall mean (i) 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(a), or
(ii) the twenty-four (24) 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;
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(v) the material breach by Executive of his
agreements or obligations under this Agreement; or
(vi) the continued refusal to follow the directives
of the Chief Executive Officer and/or President 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 the Company;
(ii the acquisition of more than fifty percent (50%)
of the Common Stock of the Company (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 the Company,
of Common Stock;
(iii) a reorganization of the Company wherein the
holders of Common Stock of the Company receive stock in another company, a
merger of the Company with another company wherein there is a eighty percent
(80%) or greater change in the ownership of the Company as a result of such
merger, or any other transaction in which the Company (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 fifty percent (50%)
or more 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 fifty percent (50%) or more 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 the Company for election as a director
of the Company by the stockholders; or
(vi) the Board of Directors of the Company, in its
sole and absolute discretion, determines that there
has been a sufficient change in the share ownership of the Company to constitute
a change of effective ownership or control of the Company.
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(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.
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(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 he is unable
substantially to perform his 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.
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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 his 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 Executives then Current Base
Salary plus the arithmetic average of payments made to Executive pursuant to the
Company's Executive Bonus Compensation Program with respect to the three (3)
fiscal years immediate proceeding 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 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, then 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
his 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
product of two (2) times the sum of Executive's then current Base Salary plus
the arithmetic average of payments made to Executive pursuant to the Company's
Executive Bonus Compensation Program with respect to the three (3) fiscal years
immediately preceding the fiscal year in which the 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 twelve (12) month or twenty-four (24) month period, as the case may be,
corresponding to the amount of the payments instead of in a lump sum.
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(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 the 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 obligations
under this Agreement, under any Stock Option Award Agreements or Restricted
Stock Award 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.
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5. Employment Covenants
5.1 Trade Secrets and Confidential Information. Executive agrees
that he shall, during the course of his 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 his or to which he 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 Company 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 his 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 his 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 his 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 himself and his 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 his 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.
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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 his 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 he 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, its subsidiaries and affiliates, in existence or
under development at the time Executive's employment with the
Company terminates, 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 it's subsidiaries or
affiliates or about which Executive acquires Confidential
Information.
"Conflicting Organization" means any person or organization
which is engaged in or about to become engaged in research on
or development, production, marketing, licensing, selling or
servicing of a Conflicting Product.
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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.
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, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President,
General Counsel and Secretary
and
Critical Care Systems, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Executive
Officer and President
Executive: ▇▇▇▇ ▇. Prior
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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.
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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.
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 Amended and Restated
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, 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
him and his rights and interest hereunder may not be assigned, nor may his
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
CURATIVE HEALTH SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer and President
/s/ ▇▇▇▇ ▇. Prior
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Executive
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