Exhibit 10.01
CARDINAL HEALTH, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
Dollars at Work*:
Grant Date:
Exercise Price:
Grant Vesting Date:
Grant Expiration Date:
Cardinal Health, Inc., an Ohio corporation (the "Company"), has granted to
[employee name] ("Grantee"), an option (the "Option") to purchase [# of shares]
common shares, without par value, of the Company (the "Shares") for a total
purchase price of , (i.e., the equivalent of [stock price] for each
full Share). The Option has been granted under the Cardinal Health, Inc. Amended
and Restated Equity Incentive Plan, as amended (the "Plan"), and will include
and be subject to all provisions of the Plan, which are incorporated herein by
reference, and will be subject to the provisions of this agreement. Capitalized
terms used in this agreement which are not specifically defined will have the
meanings ascribed to such terms in the Plan. This Option shall be exercisable at
any time on or after and prior to .
By:
--------------------
Xxxxxx X. Xxxxxx
Chairman and CEO
* Dollars at Work and total purchase price may vary due to rounding (up to the
dollar amount of one full Share).
1. Method of Exercise and Payment of Price.
(a) Method of Exercise. At any time when the Option is exercisable under
the Plan and this agreement, the Option may be exercised from time to time by
written notice to the Company which will:
(i) state the number of Shares with respect to which the Option is
being exercised; and
(ii) if the Option is being exercised by anyone other than Grantee,
be accompanied by proof satisfactory to counsel for the Company of the right of
such person or persons to exercise the Option under the Plan and all applicable
laws and regulations.
(b) Payment of Price. The full exercise price for the Option shall be paid
to the Company as provided in the Plan.
2. Transferability. The Option shall be transferable (I) at Grantee's
death, by Grantee by will or pursuant to the laws of descent and distribution,
and (II) by Grantee during Grantee's lifetime, without payment of consideration,
to (a) the spouse, former spouse, parents, stepparents, grandparents,
parents-in-law, siblings, siblings-in-law, children, stepchildren,
children-in-law, grandchildren, nieces or nephews of Grantee, or any other
persons sharing Grantee's household (other than tenants or employees)
(collectively, "Family Members"), (b) a trust or trusts for the primary benefit
of Grantee or such Family Members, (c) a foundation in which Grantee or such
Family Members control the management of assets, or (d) a partnership in which
Grantee or such Family Members are the majority or controlling partners;
provided, however, that subsequent transfers of the transferred Option shall be
prohibited, except (X) if the transferee is an individual, at the transferee's
death by the transferee by will or pursuant to the laws of descent and
distribution, and (Y) without payment of consideration to the individuals or
entities listed in subparagraphs II(a), (b) or (c), above, with respect to the
original Grantee. The Human Resources and Compensation Committee of the Board of
Directors of the Company (the "Committee") may, in its discretion, permit
transfers to other persons and entities as permitted by the Plan. Neither a
transfer under a domestic relations order in settlement of marital property
rights nor a transfer to an entity in which more than 50% of the voting
interests are owned by Grantee or Family Members in exchange for an interest in
that entity shall be considered to be a transfer for consideration. Within 10
days of any transfer, Grantee shall notify the Stock Option Administrator of the
Company in writing of the transfer. Following transfer, the Option shall
continue to be subject to the same terms and conditions as were applicable
immediately prior to transfer and, except as otherwise provided in the Plan or
this agreement, references to the original Grantee shall be deemed to refer to
the transferee. The events of termination of employment of Grantee provided in
paragraph 3 hereof shall continue to be applied with respect to the original
Grantee, following which the Option shall be exercisable by the transferee only
to the extent, and for the periods, specified in paragraph 3. The Company shall
have no obligation to notify any transferee of Grantee's
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termination of employment with the Company for any reason. The conduct
prohibited of Grantee in paragraphs 5 and 6 hereof shall continue to be
prohibited of Grantee following transfer to the same extent as immediately prior
to transfer and the Option (or its economic value, as applicable) shall be
subject to forfeiture by the transferee and recoupment from Grantee to the same
extent as would have been the case of Grantee had the Option not been
transferred. Grantee shall remain subject to the recoupment provisions of
paragraphs 5 and 6 of this agreement and tax withholding provisions of Section
13(d) of the Plan following transfer of the Option.
3. Termination of Relationship.
(a) Termination by Death. If Grantee's employment by the Company and its
subsidiaries (collectively, the "Cardinal Group") terminates by reason of death,
then, unless otherwise determined by the Committee within 60 days of such death,
any unvested portion of the Option shall vest upon and become exercisable in
full from and after the 60th day after such death. The Option may thereafter be
exercised by any transferee of Grantee, if applicable, or by the legal
representative of the estate or by the legatee of Grantee under the will of
Grantee for a period of one year (or such other period as the Committee may
specify at or after grant or death) from the date of death or until the Grant
Expiration Date, whichever period is shorter.
(b) Termination by Reason of Retirement or Disability. If Grantee's
employment by the Cardinal Group terminates prior to the Grant Vesting Date by
reason of retirement or disability (each as defined in the Plan), then, unless
otherwise determined by the Committee within 60 days of such retirement or
disability, a Ratable Portion (defined below) of the Option will vest on the
Grant Vesting Date. Such "Ratable Portion" shall be an amount equal to the
number of Shares the subject of the Option, multiplied by a fraction the
numerator of which shall be the number of full months between the Grant Date and
the date of retirement or disability, and the denominator of which shall be the
number of full months from the Grant Date to the Grant Vesting Date. The Option
may be exercised after the Grant Vesting Date by Grantee (or any transferee, if
applicable) until the earlier of the fifth anniversary of the date of such
retirement or disability or the Grant Expiration Date (the "Exercise Period");
provided, however, that any vesting that would otherwise occur during the 60-day
period beginning immediately after such retirement or disability shall not occur
until the end of such 60-day period. If Grantee has at least 15 years of service
with the Cardinal Group at the time of retirement, the Option may be exercised
after the Grant Vesting Date by Grantee (or any transferee, if applicable) until
the Grant Expiration Date. Notwithstanding the foregoing, if Grantee dies after
retirement or disability but before the expiration of the Exercise Period,
unless otherwise determined by the Committee within 60 days of such death, the
Ratable Portion of the Option shall vest upon the 60th day after such death, and
the Option may be exercised by any transferee of the Option, if applicable, or
by the legal representative of the estate or by the legatee of Grantee under the
will of Grantee from and after the 60th day after such death, for a period of
one year (or such other period as the Committee may
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specify at or after grant or death) from the date of death or until the
expiration of the Exercise Period, whichever period is shorter.
(c) Other Termination of Employment. If Grantee's employment by the
Cardinal Group terminates for any reason other than death, retirement or
disability (subject to Section 10 of the Plan regarding acceleration of the
vesting of the Option upon a Change of Control), any unexercised portion of the
Option which has not vested on such date of termination will automatically
terminate on the date of such termination. Unless otherwise determined by the
Committee at or after grant or termination, Grantee (or any transferee, if
applicable) will have 90 days (or such other period as the Committee may specify
at or after grant or termination) from the date of termination or until the
Grant Expiration Date, whichever period is shorter, to exercise any portion of
the Option that is then vested and exercisable on the date of termination;
provided, however, that if the termination was for Cause, as determined by the
Committee, the Option may be immediately canceled by the Committee (whether then
held by Grantee or any transferee).
4. Restrictions on Exercise. The Option is subject to all restrictions in
this agreement and/or in the Plan. As a condition of any exercise of the Option,
the Company may require Grantee or his or her transferee or successor to make
any representation and warranty to comply with any applicable law or regulation
or to confirm any factual matters (including Grantee's compliance with the terms
of paragraphs 5 and 6 of this agreement or any employment or severance agreement
between any member of the Cardinal Group and Grantee) reasonably requested by
the Company.
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
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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 Option (or any part thereof that has not been exercised) shall
immediately and automatically terminate, be forfeited, and shall cease to be
exercisable at any time; and
(b) Grantee shall, within 30 days following written notice from the
Company, pay the Company an amount equal to the gross option gain realized or
obtained by Grantee or any transferee resulting from the exercise of such
Option, measured at the date of exercise (i.e., the difference between the
market value of the Shares underlying the Option on the exercise date and the
exercise price paid for such Shares underlying the Option), with respect to any
portion of the Option that has already been exercised 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 of this paragraph 6 and
Grantee's continuing obligations contained herein. No provisions 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
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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
restrictions contained in this agreement are being made for the benefit of the
Company in consideration of Grantee's receipt of the Option, 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 Option and
execution of this agreement are voluntary actions on the part of Grantee and
that the Company is unwilling to provide the Option 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. Right of Set-Off. By accepting this Option, 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.
8. 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 Option 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
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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.
9. Action by the Committee. The parties agree that the interpretation of
this agreement shall rest exclusively and completely within the good faith
province and discretion of the Committee. The parties agree to be bound by the
decisions of the Committee with regard to the interpretation of this agreement
and with regard to any and all matters set forth in this agreement. The
Committee may delegate its functions under this agreement to an officer of the
Cardinal Group designated by the Committee (hereinafter the "designee"). In
fulfilling its responsibilities hereunder, the Committee or its designee may
rely upon documents, written statements of the parties or such other material as
the Committee or its designee deems appropriate. The parties agree that there is
no right to be heard or to appear before the Committee or its designee and that
any decision of the Committee or its designee relating to this agreement,
including without limitation whether particular conduct constitutes Triggering
Conduct or Competitor Triggering Conduct, shall be final and binding unless such
decision is arbitrary and capricious.
10. Prompt Acceptance of Agreement. The Option grant evidenced by this
agreement shall, at the discretion of the Committee, be forfeited if this
agreement is not executed by Grantee and returned to the Company within 90 days
of the Grant Date set forth on the first page of this agreement.
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ACCEPTANCE OF AGREEMENT
Grantee hereby: (a) acknowledges receiving a copy of the Plan, which has either
been previously delivered or is provided with this agreement, and represents
that he or she is familiar with and understands all provisions of the Plan and
this agreement; and (b) voluntarily and knowingly accepts this agreement and the
Option granted to him or her under this agreement subject to all provisions of
the Plan and this agreement. Grantee further acknowledges receiving 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.
_____________________________________
Signature
_____________________________________
Print Name
_____________________________________
Grantee's Social Security Number
_____________________________________
Date
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