EXHIBIT 10.02
FORM OF RESTRICTED STOCK AWARD LETTER
(EXECUTIVE OFFICERS)
[Date]
[Name]
[Address]
Dear _____:
I am pleased to inform you that the Compensation and Incentive Committee of
the Board of Directors of Omnicare, Inc. (herein sometimes called the
'Company'), at its meeting on [Date], has granted you __ shares of common stock
under the Omnicare, Inc. 2004 Stock and Incentive Plan (the 'Plan'). This letter
evidences the issuance or transfer of such shares to you today and sets forth
the Agreement under which such shares (hereinafter sometimes called the
'Restricted Shares') are being issued or transferred to you.
1. The Restricted Shares are issued or transferred to you subject to the
following restrictions:
(a) As long as you are employed by the Company or a Subsidiary (as
defined in paragraph 9 below) and until the restrictions set forth
in this subparagraph (a) lapse in accordance with paragraph 5, you
will not, except as otherwise specifically required or permitted by
this Agreement, sell, exchange, transfer, pledge, hypothecate or
otherwise dispose of any of the Restricted Shares or any interest
therein.
(b) During your employment with the Company or a Subsidiary, you will
not, except as otherwise required or permitted by this Agreement,
sell, exchange, transfer, pledge, hypothecate or otherwise dispose
of any Restricted Shares, or any interest therein, with respect to
which the restrictions on transfer herein imposed have not lapsed
('Non-vested Shares').
2. Upon the issuance or transfer to you of the Restricted Shares, you shall
for all purposes be a stockholder of record of the Company with respect
to the Restricted Shares and shall have all rights of a holder of common
stock with respect to such shares (including the right to vote such
shares at any meeting of holders of common stock and the right to receive
all dividends paid with respect to such shares), subject only to the
restrictions imposed by paragraph 1 of this Agreement. To evidence such
restrictions and until such restrictions shall have lapsed, the
certificates for the Restricted Shares shall carry a legend to the
effect, in form satisfactory to the Company's counsel, that they were
issued or transferred subject to, and may be sold or otherwise disposed
of only in accordance with, the terms of this Agreement.
3. Under Section 83(b) of the Internal Revenue Code, you may, within 30 days
from the date of grant of the Restricted Shares, make an election which
would cause you to be taxed on the value of such Shares based on their
Fair Market Value (as defined in the Plan) on the date of grant;
otherwise, in the absence of such an election, you will be taxed at the
times of the lapses of the restrictions on the Restricted Shares, based
on their Fair Market Value at the times of the lapses. Such taxes may be
paid in cash or by the surrender of shares of Omnicare common stock.
4. In the event that, as the result of a stock dividend, stock split,
recapitalization, merger, consolidation, reorganization, or other similar
event, you shall, as the owner of Restricted Shares, be entitled, under
the terms of the Plan or otherwise, to new or additional or different
shares or securities as follows: (a) such new or additional or different
shares or securities shall be deemed 'Restricted Shares,' (b) all the
provisions of this Agreement relating to restrictions and lapse of
restrictions shall be applicable thereto, and (c) the certificates or
other instruments evidencing such new or additional or different shares
or
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securities shall bear the legend referred to in the last sentence of
paragraph 2. The foregoing restrictions shall not apply to any fractional
shares resulting from any such event, or to any preemptive or other
rights to purchase securities to which you, as a holder of Restricted
Shares, may become entitled in connection with a public offering of
common stock.
5.
(a) The restrictions set forth in paragraph 1 above on the transfer of
the Restricted Shares shall lapse
(i) as to five (5) percent of the total grant of Restricted Shares,
on each of the first and the second anniversaries of the grant,
(ii) as to fifteen (15) percent of the total grant of Restricted
Shares, on each of the third and fourth anniversaries of the
grant, and
(iii) as to twenty (20) percent of the total grant of Restricted
Shares on each succeeding anniversary of the grant, subject, in
each case, to all the then applicable provisions of this
Agreement.
(b) Except as may otherwise be provided in any other agreement between
you and the Company, if your employment with the Company or a
Subsidiary shall, while you hold any Non-vested Shares, terminate by
reason of death, disability, retirement under a retirement plan of
the Company or a Subsidiary at or after normal retirement age with
the consent of the Compensation and Incentive Committee, as a
termination without 'cause' by the Company following your attainment
of age 65 and at least 10 years of service, or a change in control
of the Company, the restrictions on transfer applicable to such
Non-vested Shares shall lapse in their entirety as of the effective
date of such termination of employment. If your employment with the
Company or a Subsidiary shall, while you hold any Non-vested Shares,
be terminated by the Company or if you resign from your employment
with the Company, such Non-vested Shares shall be forfeited by you
as of the effective date of such termination, unless such
termination results in such shares becoming fully vested upon one of
the events specified in the immediately preceding sentence. For
purposes hereof, the term 'cause' shall mean embezzlement or
misappropriation of corporate funds, commission of a felony,
misconduct resulting in material injury to the Company or any
Subsidiary, significant activities harmful to the reputation of the
Company or any Subsidiary, a significant violation of Company or
Subsidiary policy, willful refusal to perform, or substantial
disregard of, the duties properly assigned to you, or a significant
violation of any contractual obligation to the Company or any
Subsidiary. Notwithstanding the foregoing, in the event you are
party to an employment (or similar) agreement with the Company or
any Subsidiary that defines the term 'cause,' such definition shall
apply for purposes of this Agreement.
(c) If, as and when the restrictions lapse with respect to Restricted
Shares pursuant to this paragraph 5, there will be delivered to you,
promptly upon your request, certificates free of any legend for a
like number of shares in exchange for the certificates for such
Restricted Shares bearing the legend referred to in paragraph 2 of
this Agreement.
6. Except as otherwise expressly required or permitted by this Agreement, no
right, benefit or interest in the Restricted Shares or under this
Agreement shall be subject to anticipation, alienation, sale, assignment,
encumbrance, charge, pledge or hypothecation.
7.
(a) Nothing in paragraph 1 or elsewhere in this Agreement shall preclude
a transfer to your legal representatives following your death or a
distribution to the persons provided for in paragraph 7(b)(iii) or
shall preclude you, upon not less than thirty (30) days advance
written notice to the Company, from making a gift of any Restricted
Shares, or any interest therein,
(i) to one or more of your Immediate Family Members,
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(ii) to a trust of which the beneficiary or beneficiaries of the
corpus or of the income, or both, is either yourself or one or
more of your Immediate Family Members, or both, or
(iii) to a corporation all of the stock of which is owned by you or
one or more of your Immediate Family Members, or both.
For the purposes of this provision, an 'Immediate Family Member' shall be deemed
to be a spouse, child, stepchild, grandchild, parent, brother or sister or child
of a brother or sister of yours, whether of the whole or half blood, and whether
the relationship arose by adoption.
(b) The term 'Donee', as used in this Agreement, shall be deemed to mean
(i) the person, or collectively, all the persons (including a trust
or corporation), to whom a gift permitted by paragraph 7(a) has
been made by you,
(ii) your legal representatives following your death, and
(iii) the persons to whom Restricted Shares shall be distributed by
your legal representatives as the persons whom they believe to
be entitled thereto under your will, or, in case of intestacy,
under the laws relating to intestacy.
(c) In case of any gift, transfer or distribution to a Donee,
(i) the Restricted Shares so given, transferred or distributed
shall continue to be subject to all the restrictions and other
provisions of this Agreement,
(ii) the certificates for the Restricted Shares so given,
transferred or distributed shall bear the legend referred to in
paragraph 2 of this Agreement, and
(iii) the Donee shall, with respect to the Restricted Shares so
given, transferred or distributed, have all the powers and
shall be required to comply with all the restrictions and other
provisions of this Agreement requiring the taking, or
refraining from taking, of action to the same extent as you
were immediately prior to the making of such gift, transfer or
distribution.
8. Any provision of this Agreement to the contrary, the Company may take
such steps as it believes necessary or desirable to obtain sufficient
funds from you to pay all taxes, if any, required by law to be withheld
in respect of the Restricted Shares including, but not limited to,
requiring payments to the Company by you or on your behalf and/or taking
deductions from amounts payable by the Company to you or on your behalf.
9. As used in this Agreement, the term 'Company, or a Subsidiary' shall
mean the Company, its divisions and units, and all corporations or other
forms of business association of which shares (or other ownership
interests) having 50% or more of the voting power regularly entitled to
vote for directors (or equivalent management) or regularly entitled to
receive 50% or more of the dividends (or their equivalents) paid on the
common stock (or its equivalent) are owned or controlled, directly or
indirectly, by the Company.
10. Each of the parties hereto agrees to execute and deliver all consents
and other instruments and to take all other actions deemed necessary or
desirable by counsel for the Company to carry out each term of this
Agreement. Without limiting the generality of the foregoing, you shall,
if and when requested by the Company, deposit any or all certificates
for the Restricted Shares, together with a stock power or other
instrument of transfer appropriately executed in blank, with a bank and
under a deposit agreement approved by the Company and, following such
deposit, certificates for the Restricted Shares shall no longer carry
the legend referred to in paragraph 2 of this Agreement, and new
certificates shall be issued in place thereof, in which event, each of
the parties agrees to give such instructions and to deliver or refrain
from delivering such notices to the bank acting under such deposit
agreement as may be necessary to carry out each term of this Agreement,
to the end that all property deposited under such deposit agreement
shall be paid, transferred, released or otherwise disposed of in
accordance with the terms of this Agreement and each obligation
thereunder. Each party recognizes that the other party has no adequate
remedy at law for breach of this Agreement and recognizes, consents and
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agrees that the other party shall be entitled to an injunction or decree
of specific performance directed to the other party and to the bank
acting under any such deposit agreement requiring that the provisions of
this Agreement be carried out.
11.
(a) Any notice to the Company under or pursuant to this Agreement shall
be deemed to have been given if and when delivered in person to the
Secretary of the Company or if and when mailed by certified or
registered mail to the Secretary of the Company at the executive
offices of the Company, 100 E. RiverCenter Boulevard, Suite 1600,
Covington, KY 41011, or such other address as the Company may from
time to time designate in writing by notice to you given pursuant to
paragraph 11(b) hereof.
(b) Any notice to you under or pursuant to this Agreement shall be
deemed to have been given if and when delivered to you in person or
if and when mailed by certified or registered mail to you at your
address hereinabove given or such other address as you may from time
to time designate in writing by notice to the Company given pursuant
to paragraph 11(a) above.
12. Notwithstanding any remedy provided for in this Agreement, nothing in
this Agreement shall preclude the Company from taking any other action
or enforcing any other remedy available to the Company.
13. This Agreement has been executed pursuant to the Plan, which is hereby
incorporated herein by reference. If any provision of this Agreement
shall be inconsistent with any term or condition in the Plan, then the
specific term or condition in the Plan shall supersede the conflicting
provision in this Agreement as to the shares of common stock covered by
the Plan.
14. This Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns, and you, and to the extent
applicable, each Donee.
15. THIS AGREEMENT HAS BEEN EXECUTED, AND IT AND THE RESTRICTED SHARES HAVE
BEEN OR ARE TO BE DELIVERED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, AND THE VALIDITY, INTERPRETATION, PERFORMANCE AND ENFORCEMENT
OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE.
16. In consideration of your receipt of stock awards on [Date], you hereby
reconfirm your promises and obligations as set forth in the agreement
with Omnicare, Inc. (or a subsidiary thereof) governing your employment
or otherwise containing covenants in favor of Omnicare, Inc. (and/or
such subsidiary) in respect of nondisclosure, nonsolicitation and
noncompetition.
Very truly yours,
Joel F. Gemunder
Executed and agreed to as of:
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[Name]
Date:
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