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EXHIBIT 10.15
AGREEMENT
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THIS AGREEMENT, dated and effective as of the 9th day of February,
2000, is made and entered into by and between Cardinal Health, Inc., an Ohio
corporation (the "Company"), and ________________ (the "Executive").
WHEREAS, the Company and the Executive desire to set forth in a
written agreement the terms and conditions under which the Executive will render
services to the Company;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, agree as follows:
1. POSITION AND DUTIES. (a) The Executive shall serve as _________________,
with the duties and responsibilities customarily assigned to such position and
such other duties and responsibilities as the Chief Executive Officer shall from
time to time assign to the Executive; PROVIDED that the Company may change
the Executive's title, duties and responsibilities (including reporting
responsibilities) without violating this provision, so long as the Executive
remains in an executive position.
(c) Excluding any periods of vacation and sick leave to which the
Executive is entitled under the practices and policies of the Company as in
effect from time to time, the Executive shall devote the Executive's full
business attention and time to the business and affairs of the Company and shall
use the Executive's reasonable best efforts to carry out such responsibilities
faithfully and efficiently. It shall not be considered a violation of the
foregoing for the Executive to (A) serve on corporate boards or committees with
the prior consent of the Chief Executive Officer, (B) serve on civic or
charitable boards or committees, (C) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (D) manage personal
investments, so long as such activities do not materially interfere with the
performance of the Executive's responsibilities as an employee of the Company in
accordance with this Agreement.
(c) The Executive's services shall be performed primarily at the
Company's principal place of business in Dublin, Ohio.
2. COMPENSATION. (a) SALARY. While employed by the Company, as compensation for
the
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Executive's services hereunder, the Company shall pay to the Executive an annual
salary (hereinafter the "Base Salary") of not less than the amount of the
Executive's salary as in effect on February 9, 2000, payable at such times and
intervals as the Company customarily pays the base salaries of its other
executive employees; PROVIDED that the Base Salary may be reduced as part of a
reduction that applies proportionately to all employees who are otherwise
similar to the Executive with respect to amount of compensation and level of
managerial responsibility before such reduction.
(b) ANNUAL BONUS. In addition to the Base Salary, while employed by
the Company, the Executive shall be eligible to receive an annual bonus (an
"Annual Bonus") determined and paid at the sole discretion of the Company
pursuant to the terms and conditions of the Company bonus plan for which the
Executive is then eligible, as such plan is in effect from time to time, or any
successor thereto (the "Bonus Plan"), with a Bonus Plan potential not less than
the target percentage as in effect on February 9, 2000.
(c) ADDITIONAL INCENTIVE AWARDS. In addition to the Base Salary, if
the Executive remains employed by the Company through February 9, 2002, the
Executive shall be paid an amount (the "Additional Incentive Bonus") equal to
one-half of the sum of (i) the Executive's Base Salary as in effect on February
9, 2000 and (ii) the Executive's target annual bonus for fiscal year 2000 under
the Bonus Plan calculated on a full year basis based upon the target bonus
percentage in effect on February 9, 2000. The Additional Incentive Bonus, if
payable, shall be paid as soon as administratively practicable but in no case
later than March 31, 2002. In addition, the Executive is simultaneously herewith
being granted restricted stock (the "Additional Incentive Shares"), pursuant to
the Restricted Shares Agreement attached to this Agreement as Exhibit A (the
"Restricted Shares Agreement").
(d) EMPLOYEE BENEFITS. While employed by the Company, the Executive
shall be entitled to receive employee benefits (including, without limitation,
medical, life insurance and other welfare benefits and benefits under retirement
and savings plans) and vacation to the same extent as, and on the same terms and
conditions as, other similarly situated executives of the Company from time to
time.
(e) EXPENSES. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in carrying
out the Executive's duties under this Agreement, provided that the Executive
complies with the policies, practices and procedures of the Company then
applicable to the Executive for submission of expense reports, receipts, or
similar documentation of such expenses.
3. EMPLOYMENT TERMINATION. (a) TERMINATION BY THE COMPANY. The Executive's
employment may be terminated by the Company under any of the following
circumstances: (i) upon the inability of the Executive to perform the essential
functions of the Executive's position with or without reasonable accommodation,
which inability continues for a consecutive period of 120 days or longer or an
aggregate period of 180 days or longer in any
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particular fiscal year of the Company, in either instance while the Executive is
employed by the Company, ("Incapacity"); (ii) for "Cause," defined as (w) any
willful or grossly negligent conduct by Executive that demonstrably and
materially injures the Company; (x) the Executive being convicted of, confessing
to, or becoming the subject of proceedings that provide a reasonable basis for
the Company to believe the Executive has engaged in, a felony or any crime
involving dishonesty or moral turpitude; (y) the Executive violating any
provision of Section 4 of this Agreement; or (z) the Executive's willful and
continued failure for a significant period of time to perform Executive's
duties; and (iii) for any other reason (a termination without "Cause"). The
Company shall give the Executive notice of termination specifying which of the
foregoing provisions is applicable and (in the case of clause (i) or (ii)) the
factual basis therefor, and the termination shall be effective upon the 14th day
after such notice is given (hereinafter, the date on which the Executive's
employment terminates for any reason, is referred to as the "Date of
Termination").
(b) CONSEQUENCES OF TERMINATION BY THE COMPANY WITHOUT CAUSE. If, at
any time prior to February 9, 2002, the Executive's employment is terminated by
the Company without Cause, the Executive shall not be entitled to any further
compensation or benefits provided for under this Agreement except as provided in
the Restricted Shares Agreement and except for the payments and benefits set
forth in items (i) through (iv) of the last sentence of this Section 3(b). If,
after February 9, 2002, the Executive's employment is terminated by the Company
without Cause, the Executive shall not be entitled to any further compensation
or benefits provided for under this Agreement except as provided in the
Restricted Shares Agreement and except for the payments and benefits set forth
in items (i) and (iv) of the last sentence of this Section 3(b). Termination of
the Executive's employment because of Incapacity shall be treated as described
in Section 3(c) of this Agreement. The payments and benefits provided for above
are as follows:
(i) the Base Salary through the Date of Termination;
(ii) an amount equal to the sum of the Executive's (A) Base Salary
and (B) target annual bonus under the Bonus Plan, in each case as applicable on
the Date of Termination;
(iii) any unpaid portion of the Additional Incentive Bonus, PROVIDED
that the Executive has complied with all of the Executive's obligations under
Section 4 of this Agreement; and
(iv) the vested benefits, if any, required to be paid or provided
by law.
(c) OTHER EMPLOYMENT TERMINATIONS. If the Executive's employment is
terminated for any reason other than by the Company without Cause, the Executive
shall not be entitled to any compensation provided for under this Agreement,
other than (i) the Base Salary through the Date of Termination; (ii) benefits
under any long-term disability insurance coverage in the
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case of termination because of Incapacity; (iii) vested benefits, if any,
required to be paid or provided by law; and (iv) in the case of termination
because of Incapacity or death, the benefits provided for in the Restricted
Shares Agreement, if any.
4. COVENANTS. (a) INTRODUCTION. The parties acknowledge that the provisions and
covenants contained in this Section 4 are ancillary and material to this
Agreement and the Restricted Shares Agreement and that the limitations contained
herein are reasonable in geographic and temporal scope and do not impose a
greater restriction or restraint than is necessary to protect the goodwill and
other legitimate business interests of the Company. The parties also acknowledge
and agree that the provisions of this Section 4 do not adversely affect the
Executive's ability to earn a living in any capacity that does not violate the
covenants contained herein. The parties further acknowledge and agree that the
provisions of Section 10(a) below are accurate and necessary because (i) this
Agreement is entered into in the State of Ohio, (ii) Ohio has a substantial
relationship to the parties and to this transaction, (iii) Ohio is the
headquarters state of the Company, which has operations nationwide and has a
compelling interest in having its employees treated uniformly within the United
States, (iv) the use of Ohio law provides certainty to the parties in any
covenant litigation in the United States, and (v) enforcement of the provision
of this Section 4 would not violate any fundamental public policy of Ohio or any
other jurisdiction.
(b) CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company and all of its subsidiaries,
partnerships, joint ventures, limited liability companies, and other affiliates
(collectively, the "Cardinal Group"), all secret or confidential information,
knowledge or data relating to the Cardinal Group and its businesses (including,
without limitation, any proprietary and not publicly available information
concerning any processes, methods, trade secrets, research, secret data, costs,
names of users or purchasers of their respective products or services, business
methods, operating procedures or programs or methods of promotion and sale) that
the Executive has obtained or obtains during the Executive's employment by the
Cardinal Group and that is not public knowledge (other than as a result of the
Executive's violation of this Section 4(b)) ("Confidential Information"). For
the purposes of this Section 4(b), information shall not be deemed to be
publicly available merely because it is embraced by general disclosures or
because individual features or combinations thereof are publicly available. The
Executive shall not communicate, divulge or disseminate Confidential Information
at any time during or after the Executive's employment with the Cardinal Group,
except with the prior written consent of the Cardinal Group, as applicable, or
as otherwise required by law or legal process. All records, files, memoranda,
reports, customer lists, drawings, plans, documents and the like that the
Executive uses, prepares or comes into contact with during the course of the
Executive's employment shall remain the sole property of the Company and/or the
Cardinal Group, as applicable, and shall be turned over to the applicable
Cardinal Group company upon termination of the Executive's employment.
(c) NON-RECRUITMENT OF EMPLOYER'S EMPLOYEES, ETC. Executive shall not,
at any time during
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the Restricted Period (as defined in this Section 4(c)), without the prior
written consent of Cardinal Health, Inc., directly or indirectly, contact,
solicit, recruit, or employ (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. Further, during the Restricted Period, Executive
shall not take any action that could reasonably be expected to have the effect
of encouraging or inducing any employee, representative, officer or director of
the Cardinal Group to cease their relationship with the Cardinal Group for any
reason. This provision does not apply to recruitment of employees within or for
the Cardinal Group. The "Restricted Period" means the period of Executive's
employment with the Cardinal Group and the additional period ending on the later
of (i) the end of the twelfth month following the Executive's Date of
Termination, and (ii) February 9, 2003.
(d) NO COMPETITION--SOLICITATION OF BUSINESS. During the Restricted
Period, the Executive shall not (either directly or indirectly or as an officer,
agent, employee, partner or director of any other company, partnership or
entity) solicit, service, or accept on behalf of any competitor of the Cardinal
Group the business of (i) any customer of the Cardinal Group at the time of the
Executive's employment or Date of Termination, or (ii) potential customer of the
Cardinal Group which the Executive knew to be an identified, prospective
purchaser of services or products of the Cardinal Group.
(e) NO COMPETITION--EMPLOYMENT BY COMPETITOR. During the Restricted
Period, the Executive shall not invest in (other than in a publicly traded
company with a maximum investment of no more than 1% of outstanding shares),
counsel, advise, or be otherwise engaged or employed by, any entity or
enterprise that competes with the Cardinal Group, by developing, manufacturing
or selling any product or service of a type, respectively, developed,
manufactured or sold by the Cardinal Group.
(f) NO DISPARAGEMENT. (i) The Executive shall at all times refrain
from taking actions or making statements, written or oral, that (A) denigrate,
disparage or defame the goodwill or reputation of the Cardinal Group or any of
its trustees, officers, security holders, partners, agents or former or current
employees and directors, or (B) are intended to, or may be reasonably expected
to, adversely affect the morale of the employees of the Cardinal Group. The
Executive further agrees not to make any negative statements to third parties
relating to the Executive's employment or any aspect of the businesses of the
Cardinal Group and not to make any statements to third parties about the
circumstances of the termination of the Executive's employment, or about the
Cardinal Group or its trustees, officers, security holders, partners, agents or
former or current employees and directors, except as may be required by a court
or governmental body.
(ii) The Executive further agrees that, following termination
of employment for any reason, the Executive shall assist and cooperate with the
Company with regard to any matter or project in which the Executive was involved
during the Executive's
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employment with the Company, including but not limited to any litigation that
may be pending or arise after such termination of employment. Further, the
Executive agrees to notify the Company at the earliest opportunity of any
contact that is made by any third parties concerning any such matter or project.
The Company shall not unreasonably request such cooperation of Executive and
shall compensate the Executive for any lost wages or expenses associated with
such cooperation and assistance.
(g) INVENTIONS. All plans, discoveries and improvements, whether
patentable or unpatentable, made or devised by the Executive, whether alone or
jointly with others, from the date of the Executive's initial employment by the
Company and continuing until the end of any period during which the Executive is
employed by the Cardinal Group, relating or pertaining in any way to the
Executive's employment with or the business of the Cardinal Group, shall be
promptly disclosed in writing to the Chief Executive Officer and are hereby
transferred to and shall redound to the benefit of the Company, and shall become
and remain its sole and exclusive property. The Executive agrees to execute any
assignments to the Company or its nominee, of the Executive's entire right,
title and interest in and to any such discoveries and improvements and to
execute any other instruments and documents requisite or desirable in applying
for and obtaining patents, trademarks or copyrights, at the expense of the
Company, with respect thereto in the United States and in all foreign countries,
that may be required by the Company. The Executive further agrees, at all times,
to cooperate to the extent and in the manner required by the Company, in the
prosecution or defense of any patent or copyright claims or any litigation, or
other proceeding involving any trade secrets, processes, discoveries or
improvements covered by this Agreement, but all necessary expenses thereof shall
be paid by the Company.
(h) ACKNOWLEDGMENT AND ENFORCEMENT. (i) The Executive acknowledges and
agrees that: (A) the purpose of the foregoing covenants, including without
limitation the noncompetition covenants of Sections 4(d) and (e), is to protect
the goodwill, trade secrets and other Confidential Information of the Company;
(B) because of the nature of the business in which the Cardinal Group is engaged
and because of the nature of the Confidential Information to which the Executive
has access, the Company would suffer irreparable harm and it would be
impractical and excessively difficult to determine the actual damages of the
Cardinal Group in the event the Executive breached any of the covenants of this
Section 4; and (C) remedies at law (such as monetary damages) for any breach of
the Executive's obligations under this Section 4 would be inadequate. The
Executive therefore agrees and consents that if the Executive commits any breach
of a covenant under this Section 4 or threatens to commit any such breach, the
Company shall have the right (in addition to, and not in lieu of, any other
right or remedy that may be available to it) to temporary and permanent
injunctive relief from a court of competent jurisdiction, without posting any
bond or other security and without the necessity of proof of actual damage.
(ii) In addition, in the event of a violation of this Section
4, the Company shall have no obligation to pay the Additional Incentive Bonus,
if it has not previously been
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paid, and shall have the right to cause the Additional Incentive Shares to be
forfeited (if they have not previously vested) as provided in the Restricted
Shares Agreement and to require the Executive to pay to the Company all or any
portion of the Clawback Amount (as defined below) within 30 days following
written notice by the Company to the Executive (the "Company Notice") that it is
imposing such requirement. The "Clawback Amount" means the sum of:
A. the Additional Incentive Bonus, if it has previously been
paid;
B. the amount equal to the gross gain realized or obtained by
the Executive resulting from the vesting of the Additional Incentive Shares,
measured at the date of vesting (i.e., the market value of the Additional
Incentive Shares on the vesting date); and
C. if (x) the Executive has sold or otherwise disposed of any of
the Additional Incentive Shares, an amount equal to the excess of (I) the fair
market value thereof on the date of the sale or disposition over (II) the fair
market value thereof on the date such shares vested, and if (y) the Executive
has not sold or otherwise disposed of the Additional Incentive Shares, an amount
equal to the excess of (I) the fair market value thereof on the 30th day
following the date of the Company Notice over (II) the fair market value thereof
on the date such shares vested.
(iii) With respect to any provision of this Section 4 finally
determined by a court of competent jurisdiction to be unenforceable, the
Executive and the Company hereby agree that such court shall have jurisdiction
to reform this Agreement or any provision hereof so that it is enforceable to
the maximum extent permitted by law, and the parties agree to abide by such
court's determination. If any of the covenants of this Section 4 are determined
to be wholly or partially unenforceable in any jurisdiction, such determination
shall not be a bar to or in any way diminish the Company's right to enforce any
such covenant in any other jurisdiction.
5. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or limit
the Executive's continuing or future participation in any plan, program, policy
or practice provided by the Cardinal Group for which the Executive may qualify,
nor, subject to Section 8 below, shall anything in this Agreement limit or
otherwise affect such rights as the Executive may have under any contract or
agreement with the Cardinal Group. Vested benefits and other amounts that the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of, or any contract or agreement with, the Cardinal Group on or after
the Date of Termination shall be payable in accordance with such plan, policy,
practice, program, contract or agreement, as the case may be, except as
explicitly modified by this Agreement. Notwithstanding the foregoing, the
Executive waives all of the Executive's rights to receive severance payments and
benefits under any severance plan, policy or practice of the Cardinal Group or
any entity merged with or into the Cardinal Group (or any part thereof).
6. NO MITIGATION. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any
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of the provisions of this Agreement and such amounts shall not be reduced,
regardless of whether the Executive obtains other employment.
7. NOTICES. (a) METHODS. Each notice, demand, request, consent, report, approval
or communication (hereinafter, "Notice") which is or may be required to be given
by any party to any other party in connection with this Agreement, shall be in
writing, and given by facsimile, personal delivery, receipted delivery services,
or by certified mail, return receipt requested, prepaid and properly addressed
to the party to be served as shown in Section 7(b) below.
(b) ADDRESSES. Notices shall be effective on the date sent via
facsimile, the date delivered personally or by receipted delivery service, or
three days after the date mailed:
If to the Company: Cardinal Health, Inc.
7000 Cardinal Place
Dublin, OH 43017
Attn.: Chief Executive Officer
Facsimile: (614) 757-6948
If to the Executive: At the Executive's residence address
most recently filed with the Company.
(c) CHANGES. Each party may designate by Notice to the other in
writing, given in the foregoing manner, a new address to which any Notice may
thereafter be so given, served or sent.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior
agreements with respect thereto.
9. SUCCESSORS. (a) EXECUTIVE. This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) THE COMPANY. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company may assign this Agreement to any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company that expressly
agrees to assume and perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
assignment had taken place. As used in this Agreement, "Company" shall mean
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both the Company as defined above and any such successor that assumes and agrees
to perform this Agreement, by operation of law or otherwise.
10. MISCELLANEOUS. (a) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of Ohio, without reference to principles
of conflict of laws. 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. This Agreement may not be amended or
modified except by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law.
(c) TAX WITHHOLDING. Notwithstanding any other provision of this
Agreement, the Company may withhold from amounts payable under this Agreement
all federal, state, local and foreign taxes that are required to be withheld by
applicable laws or regulations.
(d) NO WAIVER. The Executive's or the Company's failure to insist upon
strict compliance with any provision of, or to assert any right under, this
Agreement shall not be deemed to be a waiver of such provision or right or of
any other provision of or right under this Agreement.
(e) WARRANTY. The Executive hereby warrants that the Executive is free
to enter into this Agreement and to perform the services described herein.
(f) HEADINGS. The Section headings contained in this Agreement are for
convenience only and in no manner shall be construed as part of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument
(h) SURVIVAL. The obligations under this Agreement of the Executive
and the Company that by their nature and terms require (or may require)
satisfaction after the end of the Date of Termination shall survive such event
and shall remain binding upon such parties.
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IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization of its Board of Directors, the Company has caused
this Agreement to be executed in its name on its behalf, all as of the day and
year first above written.
EXECUTIVE
/s/ signature of applicable Executive
---------------------------------------
[name of applicable Executive]
CARDINAL HEALTH, INC.
By /s/ Robert D. Walter
-------------------------------------
Robert D. Walter
Chief Executive Officer
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Exhibit A
RESTRICTED SHARES AGREEMENT
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Cardinal Health, Inc., an Ohio corporation (the "Company"), hereby
grants, pursuant to the Cardinal Health, Inc. Amended and Restated Equity
Incentive Plan, as amended (the "Plan"), to ______________ (the "Executive")
that number of common shares in the Company (the "Additional Incentive Shares")
equal to the quotient of (a) the sum of (i) one half of the Executive's Base
Salary as in effect on February 9, 2000 and (ii) one half of the Executive's
target annual bonus for fiscal year 2000 under the Bonus Plan calculated on a
full year basis based upon the target bonus percentage in effect on February 9,
2000, divided by (b) the closing NYSE sales price per common share on the Grant
Date (rounded down to the nearest whole share). The Additional Incentive Shares
are subject to all provisions of the Plan, which are hereby incorporated herein
by reference, and shall be subject to the provisions of this Agreement. This
Agreement also hereby incorporates by reference the Agreement of the Executive
and the Company, dated as of February 9, 2000 (the "Agreement"), and any
reference to "this Agreement" herein includes this Restricted Shares Agreement
and the Agreement. Any capitalized terms used in this Restricted Shares
Agreement that are not specifically defined herein shall have the meanings
ascribed to such terms in the Agreement.
11. VESTING. Except as otherwise provided in this Agreement, 100% of the
Additional Incentive Shares shall vest on February 9, 2002 (which date shall be
the "Vesting Date").
12. PURCHASE PRICE. The purchase price of Additional Incentive Shares shall be
$0.00.
13. TRANSFERABILITY. Prior to the Vesting Date, the Executive shall not be
permitted to sell, transfer, pledge, assign or otherwise encumber the Additional
Incentive Shares. The Additional Incentive Shares will be held by the Company;
provided, however, that the Company will deliver certificates representing those
Additional Incentive Shares that have fully vested within a reasonable time
after being requested in writing to do so.
14. TERMINATION OF SERVICE. If the Executive's employment with the Cardinal
Group terminates prior to the Vesting Date, all of the Restricted Shares shall
be forfeited. Notwithstanding the foregoing, if the Executive's employment with
the Company is terminated prior to the Vesting Date by the Company without Cause
(within the meaning of Section 3 of the Agreement), the Additional Incentive
Shares shall nevertheless vest on the Vesting Date unless the Executive has
violated any of the provisions of Section 4 of the Agreement. If the Executive's
employment with the Company terminates prior to the vesting of the Additional
Incentive Shares by reason of the Executive's death or Incapacity, then the
restrictions with respect to a ratable portion of the Additional Incentive
Shares shall lapse and such shares shall not be forfeited, unless the Executive
has violated any of the provisions of Section 4 of the Agreement. Such ratable
portion shall be an amount equal to the number of Additional Incentive Shares
multiplied by the portion of the period between February 9, 2000 and the
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second anniversary thereof that has expired at the date of the Executive's death
or Incapacity.
15. SPECIAL FORFEITURE/CLAWBACK RULES. Notwithstanding the foregoing, if at any
time prior to the Vesting Date, the Executive violates any of the provisions of
Section 4 of the Agreement, the Additional Incentive Shares shall be forfeited
by the Executive. In addition, if at any time the Executive violates any of the
provisions of Section 4 of the Agreement, the Executive is subject to being
required to pay the Clawback Amount to the Company, as more fully set forth in
Section 4(h) of the Agreement. No provision of this Agreement shall diminish,
negate, or otherwise affect any separate noncompete agreement to which the
Executive may be a party. The Executive acknowledges and agrees that the
provisions contained in this item 5 are being made for the benefit of the
Cardinal Group in consideration of the Executive's receipt of the Additional
Incentive Shares, in consideration of employment, in consideration of exposing
the Executive to the Cardinal Group's business operations and confidential
information, and for other good and valuable consideration, the adequacy of
which consideration is hereby expressly confirmed. The Executive further
acknowledges that the receipt of the Additional Incentive Shares and execution
of this Agreement are voluntary actions on the part of the Executive, and that
the Company is unwilling to provide the Additional Incentive Shares to the
Executive without their being subject to this item 5.
16. RIGHT OF SET-OFF. By accepting these Additional Incentive Shares, the
Executive consents to a deduction from and set-off against any amounts owed to
the Executive by the Cardinal Group from time to time (including but not limited
to amounts owed to the Executive as wages, severance payments, or other fringe
benefits) to the extent of the amounts so owed.
17. SHAREHOLDER RIGHTS AND RESTRICTIONS. Except with regard to the disposition
of Additional Incentive Shares, the Executive shall generally have all rights of
a shareholder with respect to the Additional Incentive Shares from the date of
grant, including, without limitation, the right to receive dividends with
respect to the Additional Incentive Shares and the right to vote the Additional
Incentive Shares, but subject, however, to those restrictions in this Agreement
or in the Plan.
18. WITHHOLDING TAX. The Company shall have the right to require the Executive
to pay to the Company the amount of any taxes which the Company determines that
it is required to withhold with respect to the Additional Incentive Shares
(including the amount of any taxes which the Company is required to withhold
with respect to dividends on the Additional Incentive Shares) or, in lieu
thereof, to retain, or sell without notice, a sufficient number of Additional
Incentive Shares to cover the amount required to be withheld. The Company shall
also have the right to facilitate withholding by any other method permitted by
the Plan.
19. 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 Restricted Shares Agreement shall
be brought in state or federal courts located in Franklin
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County, Ohio, and the parties executing this Agreement hereby consent to the
personal jurisdiction of such courts. The Executive acknowledges that the
covenants contained in item 5 of this Restricted Shares Agreement and in Section
4 of the Agreement are reasonable in nature, are fundamental for the protection
of the Cardinal Group's legitimate business and proprietary interests, and do
not adversely affect the Executive'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 the Executive of any such covenants, the Cardinal
Group 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
such covenants, the Cardinal Group shall be entitled to specific performance and
injunctive relief or other equitable relief without any showing of irreparable
harm or damage, and the Executive 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, the Executive shall be responsible to the
Cardinal Group for all costs and reasonable legal fees incurred by the Cardinal
Group with regard to such proceedings. Any provision of this Agreement that 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.
20. PROMPT ACCEPTANCE OF AGREEMENT. The Additional Incentive Shares grant
evidenced by this Agreement shall, at the discretion of the Committee, be
forfeited if this Agreement is not executed by the Executive and returned to the
Company within sixty days of the grant date set forth below.
CARDINAL HEALTH, INC.
DATE OF GRANT: FEBRUARY 9, 2000 By:/s/ Robert D. Walter
---------------- --------------------------------
Robert D. Walter
Chief Executive Officer
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<PAGE> 14
ACCEPTANCE OF AGREEMENT
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The Executive hereby: (a) acknowledges that the Executive has received
a copy of (i) the attached Restricted Shares Agreement, (ii) the Company's most
recent Annual Report and other communications routinely distributed to the
Company's shareholders, (iii) the Executive's Agreement, (iv) the Plan, and (v)
the most recent summary description of the Plan issued by the Company; and (b)
accepts this Agreement and the Additional Incentive Shares granted to the
Executive under this Agreement subject to all provisions of the Restricted
Shares Agreement, the Plan and the Agreement; (c) represents and warrants to the
Company that the Executive is purchasing the Additional Incentive Shares for the
Executive's own account, for investment, and not with a view to or any present
intention of selling or distributing the Additional Incentive Shares 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 Additional Incentive Shares shall be made unless
the Additional Incentive Shares have been duly registered under all applicable
federal, state, local and foreign securities laws pursuant to a then-effective
registration that 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/ signature of applicable Executive
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Executive's Signature
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Executive's Social Security Number
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Date
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