A NATIONALLY
RECOGNIZED OVERNIGHT COURIER, SPECIFYING NEXT DAY DELIVERY OR (D) THREE DAYS
AFTER BEING SENT BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN
RECEIPT REQUESTED.
NOTICES, DEMANDS AND COMMUNICATIONS TO PARTIES WILL, UNLESS
ANOTHER ADDRESS IS SPECIFIED IN WRITING, BE SENT TO THE ADDRESS INDICATED:
if to the Buyer:
Curative Health Services, Inc.
150 Motor Parkway
Hauppauge, New York 11788
Phone:
(631) 232-7016
Fax:
(631) 233-8107
Attention:
Nancy Lanis
Title:
Executive Vice President, General Counsel & Secretary
if to the Seller:
Paul McConnell
110 Marlborough Street
Boston, Massachusetts 02116
(I)
HEADINGS.
THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR
REFERENCE PURPOSES ONLY AND SHALL NOT IN ANY WAY AFFECT THE MEANING OR
INTERPRETATION OF THIS AGREEMENT.
(J)
GOVERNING LAW.
ALL MATTERS RELATING TO THE INTERPRETATION,
CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE
OF LAW PROVISIONS THEREOF.
5
(K)
THIRD-PARTY BENEFIT.
NOTHING IN THIS AGREEMENT, EXPRESS OR
IMPLIED, IS INTENDED TO CONFER UPON ANY OTHER PERSON ANY RIGHTS, REMEDIES,
OBLIGATIONS OR LIABILITIES OF ANY NATURE WHATSOEVER.
(L)
JURISDICTION AND VENUE.
EACH PARTY (I) CONSENTS TO SUBMIT ITSELF
TO THE PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN THE STATE OF NEW
YORK, OR ANY NEW YORK STATE COURT LOCATED IN SUFFOLK COUNTY, IF ANY DISPUTE
ARISES OUT OF THIS AGREEMENT, (II) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR
DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY
SUCH COURT AND (III) AGREES THAT IT WILL NOT BRING ANY ACTION RELATING TO THIS
AGREEMENT IN ANY COURT OTHER THAN SUCH A FEDERAL OR STATE COURT SITTING IN THE
STATE OF NEW YORK OR IN SUFFOLK COUNTY.
(M)
WAIVER OF JURY TRIAL.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY,
AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5(M).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth in the first paragraph.
CURATIVE HEALTH SERVICES, INC.
By:
/s/ Joseph Feshbach
Name: Joseph Feshbach
Title: Chief Executive Officer
/s/ Paul McConnell
Paul McConnell
[Signature Page to Noncompetition Agreement]