Exhibit 10.63
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made effective as of
April 23, 2004 (the "Effective Date"), between CRITICAL CARE SYSTEMS, INC., a
Delaware corporation (the "Company"), a wholly-owned subsidiary of Curative
Health Services, Inc. (together with its subsidiaries, the "Company"), and
Xxxxxx X. Walk, an individual resident of the State of Missouri ("Executive").
WHEREAS, CCS wishes to retain Executive as a key employee; and
WHEREAS, CCS and Executive want the terms and conditions of
Executive's employment to be governed by this Agreement;
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements herein contained, intending to be legally bound, CCS
and Executive hereby agree as follows:
1. Employment
1.1 Employment and Duties. CCS hereby agrees to employ Executive for the
Term (as hereinafter defined) as Senior Vice President, Operations, subject to
the direction of the President (or, if Executive is in the future designated as
an executive officer of Curative Health Services, Inc., then by its Board of
Directors or the Chief Executive Officer), and in connection therewith, to
perform such duties as he shall reasonably be directed by the President (or, if
Executive is in the future designated as an executive officer of Curative Health
Services, Inc., then by its Board of Directors or the Chief Executive Officer)
to perform. Executive hereby accepts such employment and agrees to render such
services. Executive shall perform his 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, shall use his best
efforts to promote the interests of the Company and shall be just and faithful
in the performance of his duties and in carrying out his responsibilities.
1.2 Location. The principal location for performance of Executive's
services hereunder shall be at the Company's office in St. Louis, Missouri,
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) in accordance with Section 4.3
or Section 4.4.
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3. Compensation and Benefits
3.1 Compensation.
(a) Base Salary. The Company shall pay Executive an annual salary
of $180,000.00, payable in bi-weekly installments, in arrears
(the "Base Salary"). The Base Salary shall be reviewed
annually by the Company's President (or, if Executive is in
the future designated as an executive officer of Curative
Health Services, Inc., then by its 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.
(c) Stock Option Grant. On the Effective Date, Curative shall
issue and Executive shall receive a non-qualified stock option
to purchase 50,000 shares of Curative's Common Stock, pursuant
to Curative's 2001 Broad-Based Stock Incentive Plan, as
amended (the "Plan"). The terms and conditions of said stock
option shall be set forth in and governed entirely by
Curative's standard stock option agreement, which Executive
shall sign as a condition of receiving said stock option, and
nothing contained in this Agreement is intended to alter the
provisions of such stock option agreement or the Plan. The
exercise price of the Common Stock underlying this stock
option shall equal the closing sales price of Curative's
Common Stock as quoted on the NASDAQ National Market System on
the Effective Date.
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 (treating Executive's prior service for
Critical Care Services, Inc. as if it were service for the Company), salary,
active employment status 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 therefore 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;
(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 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;
(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
President, Chief Executive Officer or Board of Directors (as the case may be)
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;
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(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 Closing Date, of Common Stock;
(iii) a reorganization of the Company whereby the holders of
Common Stock of the Company receive stock in another company (other than a
subsidiary of the Company), a merger of the Company with another company wherein
there is a fifty percent (50%) or greater change in the ownership of the Common
Stock 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 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 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.
(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;
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(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 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 with or without Good Reason, 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.
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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 with or without 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,
or in the event Executive terminates (or elects not to renew) this Agreement for
Good Reason described in Section 4.1 (d)(i) or (iii) (even though such reason
occurs prior to a 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 six
(6) months 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 which would otherwise vest and
become exercisable during the twelve (12) month period commencing on the Date of
Termination shall vest and become exercisable beginning on the Date of
Termination in accordance with the applicable option agreement. In the event
this Agreement is terminated (or not renewed) for any reason other than by the
Company without Cause or by Executive for Good Reason described in Section 4.1
(d)(i) or (iii), 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 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 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.
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(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, affiliates and their respective 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 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. Restrictive Covenants. For purposes of this Section 5, Company shall include
all parents, subsidiaries and affiliates of the Company.
5.1 Noncompetition. In consideration of the Company hiring Executive and
Executive's employment hereunder, Executive agrees that, during the "Restricted
Period" (as hereinafter defined), Executive shall not, directly or indirectly,
engage in any "Competing Business Activity" (as hereinafter defined), in any
manner or capacity, including but not limited to as an advisor, principal,
agent, partner, officer, director, shareholder, employee, employer, consultant
or member of any association.
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(i) Geographical Extent of Covenant. The obligations of Executive
under this Section 5.1 shall apply in any state in which the
Company is located, operates, provides or intends to provide
products or services, or does business in on the date hereof.
Executive hereby acknowledges that the geographic boundaries,
scope of prohibited activities and the time duration of the
provisions of this Section are reasonable and are no broader
than necessary to protect the legitimate business interests of
the Company
(ii) Limitation on Covenant. Ownership by Executive, as a passive
investment, of less than three percent of the outstanding
shares of capital stock of any corporation listed on a
national securities exchange or publicly traded in the
over-the-counter market shall not constitute a breach of this
Section 5.1.
(iii) Competing Business Activity. As used in this Section 5.1,
"Competing Business Activity" shall mean (a) the business of
wholesale and/or retail pharmacy operations including without
limitation relating to the provision of drugs and/or
biopharmaceuticals for delivery to or use in the home or
physician offices, of infusible or injectable therapy products
and services, including without limitation, anti-infectives,
TPN (Total Parenteral Nutrition) therapy, hemophilia clotting
factor products, IVIG (Immune Globulin) therapy, RSV
(respiratory syncytial virus), Oncolytics/Chemotherapy
medications, products and/or supplies or other disease
management programs relating thereto for the treatment of
chronic and other conditions, including, but not limited to,
autoimmune and immune deficiency conditions, hemophilia and
blood diseases, hepatitis C, rheumatoid arthritis, Cancer and
HIV (collectively, "Specialty Pharmacy Operations"); (b)
clinical services, reimbursement services and delivery
services in connection with the Specialty Pharmacy Operations,
and (c) any business conducted by the Company or its
affiliates.
5.2 Nonsolicitation, Non-Hire and Noninterference. During the Restricted
Period, Executive shall not (a) induce or attempt to induce any employee of the
Company to leave the employ of the Company, or in any way interfere adversely
with the relationship between any such employee and the Company; (b) induce or
attempt to induce any employee of the Company to work for, render services to,
provide advice to, or supply confidential business information or trade secrets
of the Company to any third person, firm or corporation; (c) employ, or
otherwise pay for services rendered by, any employee of the Company in any
business enterprise with which Executive may be associated, connected or
affiliated; (d) induce or attempt to induce any customer, supplier, licensee,
licensor, referral source or other business relation of the Company to cease
doing business with the Company, 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 (e) induce or
attempt to induce any actual or prospective customer, supplier, licensee,
licensor, referral source or other business relation of the Company or its
affiliates, for whom Executive performed any services, with whom Executive had
any business contact, or whose identity or other specific information Executive
discovered or gained access to as a result of Executive's employment with the
Company to cease doing business with the Company or any affiliate or
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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, its subsidiaries or affiliates.
5.3 Indirect Competition or Solicitation. Executive agrees that, during
the Restricted Period, 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 the Company, either directly or indirectly;
and, in particular, Executive agrees that Executive will not, directly or
indirectly, induce any employee of the Company to carry out, directly or
indirectly, any such activity.
5.4 Notification of Employment. If at any time during the Restricted
Period Executive accepts new employment or becomes affiliated with a third
party, Executive shall immediately notify Company of the identity and business
of the new employer or affiliation. Without limiting the foregoing, Executive's
obligation to give notice under this Section 5.4 shall apply to any business
ventures in which Executive proposes to engage, even if not with a third-party
employer (such as, without limitation, a joint venture, partnership or sole
proprietorship). Executive hereby consents to the Company notifying any such new
employer or business venture of the terms of the covenants in this Section 5.4.
5.5 Restricted Period. As used in this Section 5, "Restricted Period"
shall mean the period between the Effective Date and 12 months after the
termination of Executive's employment with the Company for any reason (whether
such termination is occasioned by Executive or the Company). If Executive
violates this Agreement, then the duration of the restrictions contained in
paragraph 5 shall be extended for an amount of time equal to the period of time
during which Employee was in violation of the Agreement.
5.6 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 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
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.
5.7 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.
6. Confidential Information
In consideration for the Company's promises under this Agreement and
because Executive's duties as an employee will necessitate having access to and
being entrusted with confidential and proprietary information relating to the
Company's business and customers, Executive agrees that during employment with
Executive and thereafter, Executive shall not disclose to a third party or use
for Executive's personal benefit Confidential Information of the Company.
"Confidential Information" means
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all information written (or generated/stored on magnetic, digital, photographic
or other media) or oral, relating to any aspect of the Company's existing
business or future strategic or business plans which is disclosed to Executive
or conceived, discovered or developed by Executive, and which is not generally
known by or available through legal means to the public or proprietary to the
Company, including any such information relating to any subsidiary or affiliate
of the Company. Confidential Information includes, without limitation, the
Company's strategic and other business plans, designs, customers, suppliers,
manufacturers, distributors and the Company's marketing, accounting,
merchandising, and information-gathering techniques and methods, and all
accumulated data, listings, or similar recorded matter used or useful in the
Company's business, including but not limited to technical or non-technical
data, formulas, patterns, compilations, programs, devices, methods, business
forms, techniques, drawings, processes, pricing information, financial data,
financial plans, products plans, or lists of actual or potential customers,
clients, distributees or licensees, referral sources, information concerning the
Company's finances, services, staff, contemplated acquisitions, marketing
investigations and surveys. All information disclosed to Executive or to which
Executive has access during the period of this employment, for which there is
any reasonable basis to believe is, or which appears to be treated by Executive
as Confidential Information, shall be presumed to be Confidential Information
under this Agreement. In addition, Executive shall comply with the terms of any
Confidentiality Agreement by which Executive is bound to a third party. For
purposes of this Section 6, the Company shall include any parents, subsidiaries
and affiliates of the Company.
7. Inventions
7.1 Invention Defined. As used in this Section, the term "Invention" means
all inventions, discoveries, improvements, processes, developments, designs,
know-how, data, computer programs and formulae, designed or conceived by
Executive during the Term of this Agreement which reasonably relate to the
Company's business or result from duties Executive performs for Company, or
result from use of any premises or property owned, leased, licensed or
contracted for by Company, whether patentable or unpatentable or protectable by
copyright or other intellectual property law.
7.2 Disclosure and Assignment of Inventions. Executive agrees that
Executive's services on behalf of the Company are works made for hire and
Executive shall communicate to the Company as promptly and fully as practicable
all Inventions made, conceived, reduced to practice or originated by Executive,
either solely or jointly with others, during the Term of Executive's employment
with the Company and to assign, transfer, and convey to Executive or its
authorized representatives, both during or subsequent to the Term of Executive's
employment with the Company, upon request all right, title, and interest in and
to all such Inventions. In addition, Executive shall communicate to the Company
as promptly and fully as practicable all Inventions which are (or were)
conceived or reduced to practice by Executive (alone or jointly with others)
within one (1) year following the termination of Executive's employment with the
Company for any reason, and whether occasioned by Executive or the Company.
7.3 Participation in Protecting Inventions. Executive shall furnish to the
Company, upon its request and at its expense, all written assignments,
transfers, affidavits, certifications and other documents the Company may
request in order to confirm the fact of the Company's
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ownership of any of its property. Upon reasonable request, Executive shall
assist the Company and/or its nominees (without charge but at no expense to
Executive) at any time and in every proper way to obtain for its and/or their
own benefits, patents and copyrights for all such Inventions anywhere in the
world and to enforce its and/or their rights in any Invention in legal
proceedings. In the event the Company is unable to secure Executive's assistance
after the Company's reasonable request with regard to executing or filing any
document needed to apply for or prosecute any patent, copyright, trademark,
trade secret or other right or protection relating to an Invention, Executive
hereby irrevocably designates and appoints the Company and each of its duly
authorized officers and agents as Executive's agent and attorney-in-fact to act
for and in Executive's behalf and stead to execute and file any document and to
do all other lawfully permitted acts to further the prosecution, issuance, and
enforcement of patents, copyrights and other proprietary rights in any way
relating to an Invention with the same force and effect as if executed and
delivered by Executive.
7.4 Disclosure of Existing Inventions. Executive agrees to provide, in
conjunction with this Agreement, a complete list and brief description of all
Inventions made, conceived, and reduced to practice by Executive prior to
commencing employment with the Company and which Executive does not intend to
include in the assignment provision set forth in Section 7.2. Except as so
listed, Executive agrees not to assert any rights under any Inventions made or
acquired by Executive prior to commencing employment with the Company. The
Company further agrees to provide a detailed description and/or working model of
any Invention so listed, at the request of the Company.
7.5 Inventions Excluded. Any provision in this Section requiring Executive
to assign Executive's rights in any Invention does not apply to an Invention
which qualifies for exclusion under state law, which, if applicable, provides
that that the requirement to assign shall not apply to an Invention that
Executive developed entirely on Executive's own time without using the Company's
equipment, supplies, facilities or trade secret information except for those
Inventions that either: (1) relate at the time of conception or reduction to
practice to the Company's business, or actual or demonstrably anticipated
research or development of the Company; or (2) result from any work performed by
Executive for the Company. Executive further understands that Executive bears
the burden of proving that an Invention qualifies for exclusion under these
provisions.
8. Miscellaneous
8.1 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.
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To Company: Critical Care Systems, Inc.
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: Xx. Xxxxxx X. Walk
0000 Xxxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
8.2 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.
8.3 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.
8.4 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.
8.5 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.
8.6 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.
8.7 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 his 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.
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8.8 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.
CRITICAL CARE SYSTEMS, INC.
By: /s/ Xxxx XxXxxxxxx
----------------------------------------
Name: Xxxx XxXxxxxxx
Title: President and COO
/s/ Xxxxxx X. Walk
----------------------------------------
Executive
Name: Xxxxxx X. Walk
Title: Senior Vice President, Operations
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