Exhibit 10.54
RESTRICTED SHARE UNITS AGREEMENT
Cardinal Health, Inc., an Ohio corporation (the "Company"), on July 1,
1999, granted to Xxxxxxx Xxxxxx (the "Grantee") 7,373 (which as of the date of
this agreement have been split adjusted to equal 11,059) Common Shares in the
Company (the "Restricted Shares"). The Company and Grantee desire to cancel the
Restricted Shares and grant to Grantee 11,059 Restricted Share Units (the
"Restricted Share Units" or "Award") representing an unfunded, unsecured promise
of the Company to deliver Common Shares to the Grantee as set forth herein. The
Restricted Shares are thus hereby cancelled and forfeited. 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 the provisions of this agreement. Capitalized terms used
herein which 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 July 1, 2002
(the "Vesting Date").
2. Purchase Price. The purchase price of the Restricted Share Units shall
be $-0-.
3. Transferability. The Restricted Share Units shall not be transferable.
4. Termination of Service. Unless otherwise determined by the Committee at
or after grant or termination, and except as set forth below, if the 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 the Grantee. If the
Grantee's Continuous Service terminates prior to the vesting of all of the
Restricted Share Units by reason of the 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 each separate award of
Restricted Share Units and shall be an amount equal to the number of Restricted
Share Units awarded to the Grantee multiplied by the portion of the period
between July 1, 1999 and the third anniversary thereof that has expired at the
date of the Grantee's death or total or partial disability. 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 or material concerning the Cardinal
Group; violation of Company policies, including conduct which would constitute a
breach of the then-most recent version of the Certificate of Compliance with
Company Policies signed by the Grantee; directly or indirectly employing,
contacting concerning employment, or participating in any way in the recruitment
for employment (whether as an employee, officer, director, agent, consultant or
independent contractor) any person who was or is at any time during the previous
twelve months an employee, representative, officer, or director of the Cardinal
Group; and breaching any provision of any employment or severance agreement with
a member of the Cardinal Group. As used herein, "Competitor Triggering Conduct"
shall include accepting employment with or serving as a consultant, 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") either during or
within one year following Grantee's termination of employment with the Cardinal
Group. The Committee shall resolve in good faith any disputes concerning whether
particular conduct constitutes Triggering Conduct or Competitor Triggering
Conduct, and any such determination by the Committee shall be conclusive and
binding on all interested persons.
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, Grantee agrees not to engage
in Triggering Conduct. If Grantee engages in such Triggering Conduct or in
Competitor Triggering Conduct during such time, 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) the 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 the
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. The Grantee may be released from Grantee's
obligations under this item 6 only if the Committee (or its duly appointed
agent) determines, in writing and in its sole discretion, that such action is in
the best interests of the Company. Nothing in this item 6 constitutes a
so-called "noncompete" covenant. However, this item 6 does 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 the
Grantee's acceptance of employment with a Competitor. Grantee agrees to provide
the Company with at least ten days written notice prior to directly or
indirectly accepting employment with or serving as a consultant, advisor, or in
any other capacity to a Competitor, and further agrees to inform any such new
employer, before accepting employment, of the terms of this item 6 and the
Grantee's continuing obligations contained herein. No provision of this
agreement shall diminish, negate, or otherwise impact any separate noncompete
agreement to which Grantee may be a party. Grantee acknowledges and agrees that
the provisions contained in this item 6 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 this item 6.
7. Payment. On the one year anniversary of the first date on which the
Grantee would not 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,
the Grantee shall be entitled to receive from the Company (without any payment
on behalf of the Grantee) the Company Common Shares represented by this Award.
8. Dividends. The 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 of the Company in an amount equal to the
dividends that would have been paid on the Company Common Shares represented by
the Restricted Share Units.
9. Right of Set-Off. By accepting these Restricted Share Units, the
Grantee consents to a deduction from and set-off against any amounts owed to the
Grantee by any member of the Cardinal Group from time to time (including but not
limited to amounts owed to the Grantee as wages, severance payments, or other
fringe benefits) to the extent of the amounts owed to the Cardinal Group by the
Grantee under this agreement.
2
10. No Shareholder Rights. The Grantee shall have no rights of a
shareholder with respect to the Restricted Share Units, including, without
limitation, the Grantee shall not have the right to vote the Common Shares
represented by the Restricted Share Units.
11. Withholding Tax. The Company shall have the right to require the
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 or, in lieu
thereof, to withhold a sufficient number of Common Shares underlying the
Restricted Share Units 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. The Company shall also have the right to
facilitate withholding by any other method permitted by the Plan.
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 superseded by the laws of the United States of America. 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 items 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 the 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 item 5 or 6 of this
agreement, the Company shall be entitled to specific performance and injunctive
relief or other equitable relief without any showing of irreparable harm or
damage, 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 Company hereunder or by law. In the event that it becomes
necessary for the Company 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: April 2002 By: /s/ Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx
Executive Vice President
3
ACCEPTANCE OF AGREEMENT
The Grantee hereby: (a) acknowledges that he 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 August 8, 2001 pertaining to the Plan; (b) accepts this
agreement and the Restricted Share Units granted to him under this agreement
subject to all provisions of the Plan and this agreement; (c) represents and
warrants to the Company that he is purchasing the Restricted Share Units for his
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.
/s/ Xxxxxxx Xxxxxx
----------------------------
Grantee's Signature
----------------------------
Grantee's Social Security Number
April 2002
----------------------------
Date
4
