Exhibit 10.5
AMENDMENT TO AND SECOND ACKNOWLEDGMENT
RELATING TO EMPLOYMENT AGREEMENT
This Amendment to and Second Acknowledgment of Assignment of Employment
Agreement ("Amendment") is made as of August 19, 2003, by and between Curative
Health Services Co. (formerly 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 (the "Employment Agreement");
WHEREAS, Executive currently is employed by Curative as its
__________________;
WHEREAS, on August 19, 2003 Curative commenced a reorganization plan (the
"Reorganization"), pursuant to which (i) Curative Health Services, Inc.
(formerly Curative Holding Co.), a Minnesota corporation, ("Curative Holding")
was created, and (ii) Curative became a wholly owned subsidiary of Curative
Holding, and Employee previously signed in connection therewith an
Acknowledgement Relating to Employment Agreement;
WHEREAS, Curative and Executive desire that Executive continue as an
employee of Curative under the terms of the Employment Agreement (giving effect
to the Reorganization); and
WHEREAS, certain provisions of the Employment Agreement must be amended to
give effect to the Reorganization, and to reflect that Curative may desire to
assign the Employment Agreement to Curative Holding in the future.
NOW, THEREFORE, in consideration of the foregoing and the mutual terms and
conditions set forth herein, Curative and Executive agree as follows:
1. Amendment. The following provisions of the Employment Agreement are amended
as follows:
(a) All references to "Curative Health Services, Inc." (before taking into
account this Amendment) shall be changed to "Curative Health Services Co."
(b) A whereas clause shall be added to the recitals to read as follows:
"WHEREAS, the Company is a wholly owned subsidiary of Curative
Health Services, Inc. (formerly Curative Holding Co.), a Minnesota
Corporation ("Curative Holding");"
(c) The third sentence of Section 1.1 shall be amended to read in its
entirety as follows:
"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."
(d) The second sentence of Section 3.1(a) shall be amended to read in its
entirety as follows:
"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)."
(e) The first reference two sentences in Section 3.2 shall be amended to
read in their entirety as follows:
"Executive shall be entitled to participate in all employee benefit
plans or programs of the Company and Curative Holding to the extent
that his position, title, tenure, salary, age, health and other
qualifications make him 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
terns, provisions, rules and regulations applicable thereto."
(f) All references to "the Company" in Section 4.1(b) shall be amended to
read "the Company, its subsidiaries or its affiliates."
(g) All references to "the Company" in Section 4.1(c) shall be amended to
read "Curative Holding."
(h) All references to "the Company's Stock Option Plan" in Section 4.5
shall be amended to read "Curative Holding's Stock Option Plan."
(i) Section 4.5(d) shall be amended to read in its entirety as follows:
"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
Award Agreements, and under an 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."
(j) The second sentence of Section 5.1 shall be amended to read in its
entirety as follows:
"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."
(k) The last sentence of Section 5.2 shall be amended to read in its
entirety as follows:
"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
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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."
(l) All references to "the Company" in Section 5.6 shall be amended to
read "the Company or its subsidiaries or affiliates."
2. 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
Amendment.
3. Modifications. Except as modified hereby, the Employment Agreement is
in all other respects hereby ratified and confirmed.
4. Force and Effect. This Amendment shall be effective from the date
hereof until such time as Curative may assign the Employment Agreement to
Curative Holding, at which time this Amendment shall have no further force or
effect.
IN WITNESS HEREOF, the parties have executed this Amendment effective as
of the date set forth above.
CURATIVE HEALTH SERVICES CO.
__________________________________ By____________________________________
Executive Its_________________________________
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