Exhibit 10.02
RESTRICTED SHARE UNITS AGREEMENT
Cardinal Health, Inc, an Ohio corporation (the "Company"), hereby
grants to [employee name] ("Grantee") [# of Units] Restricted Share Units (the
"Restricted Share Units" or "Award"), representing an unfunded unsecured promise
of the Company to deliver common shares, without par value, of the Company (the
"Common Shares") to Grantee as set forth herein. The Restricted Share Units are
being granted pursuant to the Cardinal Health, Inc. Amended and Restated Equity
Incentive Plan, as amended (the "Plan"), and shall be subject to all provisions
of the Plan, which are hereby incorporated herein by reference, and shall be
subject to all provisions of this agreement. Capitalized terms used herein that
are not specifically defined herein shall have the meanings ascribed to such
terms in the Plan.
1. VESTING. Subject to the provisions set forth elsewhere in this
agreement, the Restricted Share Units shall vest in full (100%) on (the "Vesting
Date").
2. PURCHASE PRICE. The purchase price of the Restricted Share
Units shall be $ .
3. TRANSFERABILITY. The Restricted Share Units shall not be
transferable, except as otherwise provided in Section 4 of this agreement.
4. TERMINATION OF SERVICE. Unless otherwise determined by the
Committee at or after grant or termination, and except as set forth below, if
Grantee's Continuous Service to the Company and its subsidiaries (collectively,
the "Cardinal Group") terminates prior to the Vesting Date, all of the
Restricted Share Units that have not vested shall be forfeited by Grantee. If
Grantee's Continuous Service terminates prior to the vesting of all of the
Restricted Share Units by reason of Grantee's death or total or partial
disability, then the restrictions with respect to a ratable portion of the
Restricted Share Units shall lapse and such shares shall not be forfeited. Such
ratable portion shall be determined with respect to this award of Restricted
Share Units as an amount equal to the number of Restricted Share Units awarded
to Grantee multiplied by a fraction, the numerator of which is the number of
whole calendar months between the date of this grant (the "Grant Date") and the
date of such death or disability and the denominator of which is the number of
whole calendar months between the Grant Date and the Vesting Date. For purposes
of this agreement, the term "Continuous Service" shall mean the absence of any
interruption or termination of service as an employee or director of any entity
within the Cardinal Group.
5. TRIGGERING CONDUCT/COMPETITOR TRIGGERING CONDUCT. As used in
this agreement, "Triggering Conduct" shall include disclosing or using in any
capacity other than as necessary in the performance of duties assigned by the
Cardinal Group any confidential information, trade secrets or other business
sensitive information or material concerning the Cardinal Group; violation of
Company policies, including conduct which would constitute a breach of any of
the Certificates of Compliance with Company Policies and/or the Certificates of
Compliance with Company Business Ethics Policies signed by Grantee; directly or
indirectly employing, contacting concerning employment, or participating in any
way in the recruitment for employment of (whether as an employee, officer,
director, agent, consultant or independent
contractor), any person who was or is an employee, representative, officer or
director of the Cardinal Group at any time within the 12 months prior to the
termination of Grantee's employment with the Cardinal Group; any action by
Grantee and/or his or her representatives that either does or could reasonably
be expected to undermine, diminish or otherwise damage the relationship between
the Cardinal Group and any of its customers, potential customers, vendors and/or
suppliers that were known to Grantee; and breaching any provision of any
employment or severance agreement with a member of the Cardinal Group. As used
in this agreement, "Competitor Triggering Conduct" shall include, either during
Grantee's employment or within one year following Grantee's termination of
employment with the Cardinal Group, accepting employment with or serving as a
consultant or advisor or in any other capacity to an entity that is in
competition with the business conducted by any member of the Cardinal Group (a
"Competitor"), including, but not limited to, employment or another business
relationship with any Competitor if Grantee has been introduced to trade
secrets, confidential information or business sensitive information during
Grantee's employment with the Cardinal Group and such information would aid the
Competitor because the threat of disclosure of such information is so great
that, for purposes of this agreement, it must be assumed that such disclosure
would occur.
6. SPECIAL FORFEITURE/REPAYMENT RULES. For so long as Grantee
continues as an employee with the Cardinal Group and for three years following
Grantee's termination of employment with the Cardinal Group regardless of the
reason, Grantee agrees not to engage in Triggering Conduct. If Grantee engages
in Triggering Conduct during the time period set forth in the preceding sentence
or in Competitor Triggering Conduct during the time period referenced in the
definition of "Competitor Triggering Conduct" set forth in paragraph 5 above,
then:
(a) the Restricted Share Units (or any part thereof that have not
vested) shall immediately and automatically terminate, be forfeited, and shall
cease to vest at any time; and
(b) Grantee shall, within 30 days following written notice from
the Company, pay to the Company an amount equal to the gross gain realized or
obtained by Grantee resulting from the vesting of such Restricted Share Units,
measured at the date of vesting (i.e., the market value of the Restricted Share
Units on the vesting date), with respect to any portion of the Restricted Share
Units that has already vested at any time within three years prior to the
Triggering Conduct (the "Look-Back Period"), less $1.00. If Grantee engages only
in Competitor Triggering Conduct, then the Look-Back Period shall be shortened
to exclude any period more than one year prior to Grantee's termination of
employment with the Cardinal Group, but including any period between the time of
Grantee's termination and engagement in Competitor Triggering Conduct. Grantee
may be released from Grantee's obligations under this paragraph 6 only if the
Committee (or its duly appointed designee) determines, in writing and in its
sole discretion, that such action is in the best interests of the Company.
Nothing in this paragraph 6 constitutes a so-called "noncompete" covenant. This
paragraph 6 does, however, prohibit certain conduct while Grantee is associated
with the Cardinal Group and thereafter and does provide for the forfeiture or
repayment of the benefits granted by this agreement under certain circumstances,
including, but not limited to, Grantee's acceptance of employment with a
Competitor. Grantee agrees to provide the Company with at least 10 days written
notice prior to directly or indirectly accepting employment with or serving as a
consultant or advisor or in any other capacity to a Competitor, and further
agrees to inform any such new employer, before accepting employment, of the
terms
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of this paragraph 6 and Grantee's continuing obligations contained herein. No
provision of this agreement shall diminish, negate or otherwise impact any
separate noncompete or other agreement to which Grantee may be a party,
including, but not limited to, any of the Certificates of Compliance with
Company Policies and/or the Certificates of Compliance with Company Business
Ethics Policies; provided, however, that to the extent that any provisions
contained in any other agreement are inconsistent in any manner with the
restrictions and covenants of Grantee contained in this agreement, the
provisions of this agreement shall take precedence and such other inconsistent
provisions shall be null and void. Grantee acknowledges and agrees that the
provisions contained in this agreement are being made for the benefit of the
Company in consideration of Grantee's receipt of the Restricted Share Units, in
consideration of employment, in consideration of exposing Grantee to the
Company's business operations and confidential information, and for other good
and valuable consideration, the adequacy of which consideration is hereby
expressly confirmed. Grantee further acknowledges that the receipt of the
Restricted Share Units and execution of this agreement are voluntary actions on
the part of Grantee and that the Company is unwilling to provide the Restricted
Share Units to Grantee without including the restrictions and covenants of
Grantee contained in this agreement. Further, the parties agree and acknowledge
that the provisions contained in paragraphs 5 and 6 are ancillary to, or part
of, an otherwise enforceable agreement at the time the agreement is made.
7. PAYMENT. Subject to the provisions of paragraphs 5 and 6 of
the agreement, on the one year anniversary of the first date on which Grantee
ceases to be a reporting person pursuant to Section 16 of the Securities
Exchange Act, as amended, or on such earlier date as may be approved by the
Chairman of the Company as to all or any portion of the Restricted Share Units,
Grantee shall be entitled to receive from the Company (without any payment on
behalf of Grantee other than as described in paragraph 11) the Common Shares
represented by this Award.
8. DIVIDENDS. Grantee shall not receive cash dividends on the
Restricted Share Units but instead shall receive a cash payment from the Company
on each cash dividend payment date with respect to the Common Shares with a
record date between the Grant Date and the earlier of the termination or
forfeiture of this grant in accordance with the terms hereof or the payment
described in paragraph 7 hereof, such cash payment to be in an amount equal to
the dividends that would have been paid on the Common Shares represented by the
Restricted Share Units.
9. RIGHT OF SET-OFF. By accepting these Restricted Share Units,
Grantee consents to a deduction from, and set-off against, any amounts owed to
Grantee by any member of the Cardinal Group from time to time (including, but
not limited to, amounts owed to Grantee as wages, severance payments or other
fringe benefits) to the extent of the amounts owed to the Cardinal Group by
Grantee under this agreement.
10. NO SHAREHOLDER RIGHTS. Grantee shall have no rights of a
shareholder with respect to the Restricted Share Units, including, without
limitation, Grantee shall not have the right to vote the Common Shares
represented by the Restricted Share Units.
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11. WITHHOLDING TAX. The Company shall have the right to require
Grantee to pay to the Company the amount of any taxes which the Company is
required to withhold with respect to the Restricted Share Units (including the
amount of any taxes which the Company is required to withhold with respect to
the cash payments described in paragraph 8 hereof) or, in lieu thereof, to
retain, or sell without notice, a sufficient number of Common Shares to cover
the amount required to be withheld. In the case of any amounts withheld for
taxes pursuant to this provision in the form of Common Shares, the amount
withheld shall not exceed the minimum required by applicable law and
regulations.
12. GOVERNING LAW/VENUE. This agreement shall be governed by the
laws of the State of Ohio, without regard to principles of conflicts of law,
except to the extent superceded by the laws of the United States of America. The
parties agree and acknowledge that the laws of the State of Ohio bear a
substantial relationship to the parties and/or this agreement and that the
Restricted Share Units and benefits granted herein would not be granted without
the governance of this agreement by the laws of the State of Ohio. In addition,
all legal actions or proceedings relating to this agreement shall be brought in
state or federal courts located in Franklin County, Ohio, and the parties
executing this agreement hereby consent to the personal jurisdiction of such
courts. Grantee acknowledges that the covenants contained in paragraphs 5 and 6
of this agreement are reasonable in nature, are fundamental for the protection
of the Company's legitimate business and proprietary interests, and do not
adversely affect Grantee's ability to earn a living in any capacity that does
not violate such covenants. The parties further agree that in the event of any
violation by Grantee of any such covenants, the Company will suffer immediate
and irreparable injury for which there is no adequate remedy at law. In the
event of any violation or attempted violations of the restrictions and covenants
of Grantee contained in this agreement, the Cardinal Group shall be entitled to
specific performance and injunctive relief or other equitable relief, including
the issuance ex parte of a temporary restraining order, without any showing of
irreparable harm or damage, such irreparable harm being acknowledged and
admitted by Grantee, and Grantee hereby waives any requirement for the securing
or posting of any bond in connection with such remedy, without prejudice to the
rights and remedies afforded the Cardinal Group hereunder or by law. In the
event that it becomes necessary for the Cardinal Group to institute legal
proceedings under this agreement, Grantee shall be responsible to the Company
for all costs and reasonable legal fees incurred by the Company with regard to
such proceedings. Any provision of this agreement which is determined by a court
of competent jurisdiction to be invalid or unenforceable should be construed or
limited in a manner that is valid and enforceable and that comes closest to the
business objectives intended by such provision, without invalidating or
rendering unenforceable the remaining provisions of this agreement.
CARDINAL HEALTH, INC.
DATE OF GRANT: By: _______________________________
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ACCEPTANCE OF AGREEMENT
Grantee hereby: (a) acknowledges that he or she has received a copy of the Plan,
a copy of the Company's most recent Annual Report and other communications
routinely distributed to the Company's shareholders, and a copy of the Plan
Description dated November 17, 2003 pertaining to the Plan; (b) accepts this
agreement and the Restricted Share Units granted to him or her under this
agreement subject to all provisions of the Plan and this agreement; (c)
represents and warrants to the Company that he or she is purchasing the
Restricted Share Units for his or her own account, for investment, and not with
a view to or any present intention of selling or distributing the Restricted
Share Units either now or at any specific or determinable future time or period
or upon the occurrence or nonoccurrence of any predetermined or reasonably
foreseeable event; and (d) agrees that no transfer of the Common Shares
delivered in respect of the Restricted Share Units shall be made unless the
Common Shares have been duly registered under all applicable Federal and state
securities laws pursuant to a then-effective registration which contemplates the
proposed transfer or unless the Company has received a written opinion of, or
satisfactory to, its legal counsel that the proposed transfer is exempt from
such registration.
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Grantee's Signature
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Grantee's Social Security Number
________________________________
Date
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