Exhibit 10.2
[EXECUTION COPY]
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this "Agreement") dated as of April 23_, 2004,
between Paul McConnell, a resident of the Commonwealth of Massachusetts
("Seller"), and Curative Health Services, Inc., a Minnesota corporation
("Buyer").
WHEREAS, Seller is a shareholder of Critical Care Systems, Inc., a Delaware
corporation (the "Company"); and
WHEREAS, Buyer has entered into an agreement with Seller and certain other
persons, dated February 24, 2004 (the "Purchase Agreement"), pursuant to which
Buyer will acquire all of the issued and outstanding shares of capital stock of
the Company (the "Shares") from Seller and the other shareholders of the Company
listed on Schedule 1 to the Purchase Agreement ; and
WHEREAS, the Buyer is unwilling to proceed with the purchase of the Shares
unless Seller agrees to refrain from engaging in any activities that are in
competition with the activities being carried on by the Buyer, and it is a
condition to the consummation of the transactions contemplated by the Purchase
Agreement that the Buyer receive this Agreement from Seller.
NOW, THEREFORE, in consideration of the premises, the agreement of the Buyer to
consummate the purchase of all Shares owned by Seller, the mutual agreements
herein set forth and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1.
NONCOMPETITION COMMITMENT.
(A)
AGREEMENT NOT TO COMPETE.
SELLER AGREES THAT FOR A PERIOD OF FOUR
(4) YEARS COMMENCING ON THE DATE OF THIS AGREEMENT (THE "RESTRICTED PERIOD"),
SELLER SHALL NOT, DIRECTLY OR INDIRECTLY, THROUGH AN AFFILIATE OR OTHERWISE,
EITHER FOR SELLER'S OWN BENEFIT OR FOR THE BENEFIT OF ANY OTHER PERSON, FIRM,
CORPORATION, GOVERNMENTAL OR PRIVATE ENTITY, OR ANY OTHER ENTITY OF ANY KIND,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE BUYER, WHICH CONSENT MAY BE WITHHELD BY
THE BUYER IN ITS SOLE DISCRETION, COMPETE IN ANY MANNER OR CAPACITY (E.G.,
THROUGH ANY FORM OF OWNERSHIP OR AS AN ADVISOR, PRINCIPAL, AGENT, PARTNER,
OFFICER, DIRECTOR, EMPLOYEE, EMPLOYER, CONSULTANT, MEMBER OF ANY ASSOCIATION OR
OTHERWISE) WITH THE BUSINESS OF THE COMPANY AS CONDUCTED PRIOR TO THE DATE
HEREOF, INCLUDING WITHOUT LIMITATION (I) ANY BUSINESS DIRECTLY OR INDIRECTLY
ENGAGED IN 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, 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"), AND (II) CLINICAL SERVICES, REIMBURSEMENT SERVICES, DELIVERY
SERVICES AND DATE SUPPLY SERVICES IN CONNECTION WITH SPECIALTY PHARMACY
OPERATIONS (COLLECTIVELY, "COMPETITIVE ACTIVITIES").
NOTWITHSTANDING THE
FOREGOING, THE PROVISION OF SERVICES AS AN EMPLOYEE OF THE COMPANY, BUYER OR
THEIR AFFILIATES SHALL NOT BE CONSIDERED A COMPETITIVE ACTIVITY.
FOR THE
PURPOSE OF THIS AGREEMENT, "AFFILIATE" OF