Exhibit 10.01
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated and effective as of November 13, 2002
(the "Effective Date") is made and entered into by and between Cardinal Health,
Inc., an Ohio corporation (the "Company"), and Xxxxx X. Xxxxxx (the
"Executive").
WHEREAS, the Company and the Executive are parties to that
certain Employment Agreement dated as of February 9, 2000 (the "Prior
Agreement"); and
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 that will replace and supercede the Prior
Agreement from and after the Effective Date.
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. EMPLOYMENT PERIOD. The Company shall employ, or shall cause
one of its subsidiaries or affiliates to employ, the Executive, and the
Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, during the three-year period beginning on the Effective Date and
ending on the third (3rd) anniversary of the Effective Date, unless prior to
such date the employment of the Executive is terminated in accordance with
Section 4 of this Agreement (such period, the "Employment Period"). For purposes
of this Agreement, any reference to the "Company" shall mean, where appropriate,
the actual Cardinal subsidiary or affiliate that employs the Executive. If the
Executive's employment is terminated by the Company without Cause (as defined in
Section 4 of this Agreement) prior to January 31, 2003, the Executive may, at
his option, immediately change his status to that of a consulting employee. In
such event, the Executive shall become a consulting employee without
experiencing any break in Executive's status as an employee of the Company. The
Executive's ability to serve as a consulting employee is conditioned upon his
continued observance of Section 5 of this Agreement. In such event, the
Executive's service as a consulting employee (and in all other capacities) shall
terminate on January 31, 2003 (the period during which the Executive serves as a
consulting employee, if any, the "Part-Time Period"). The Employment Period may
be extended by mutual written agreement of the parties. The parties hereto agree
and acknowledge that the Prior Agreement is and shall be considered terminated
and superceded by this Agreement from and after the Effective Date.
2. POSITION AND DUTIES. (a) During the Employment Period, the
Executive shall serve as President and Chief Executive Officer - Healthcare
Products and Services, with the duties and responsibilities customarily assigned
to such position, and such other duties and responsibilities as the Chief
Executive Officer of the Company 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) at any time without
violating this provision, so long as the Executive remains in an executive
position.
(b) During the Employment Period, and 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 of the Company, (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.
3. COMPENSATION. (a) SALARY. During the Employment Period, as
compensation for the Executive's services hereunder, the Company shall pay to
the Executive an annual base salary (the "Base Salary") at the rate of not less
than $680,000, 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. In
the event that there occurs a Part-Time Period, as compensation for the
Executive's services as a consulting employee hereunder and in lieu of the Base
Salary, the Company shall pay to the Executive an annual base salary at the rate
of $50,000 (the "Consulting Base Salary"), payable at such times and intervals
as the Company customarily pays the base salaries of its executive employees.
(b) ANNUAL BONUS. In addition to the Base Salary, during the
Employment Period 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"). The parties hereto agree and acknowledge
that the Executive's Annual Bonus target under this Agreement shall be equal to
one hundred and thirty percent (130%) of the Base Salary. In the event that
there occurs a Part-Time Period, in lieu of the Annual Bonus but in addition to
the Consulting Base Salary,
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during the Part-Time Period the Executive shall be eligible to receive a bonus
determined and paid at the sole discretion of the Company, in such amount, if
any, as the Company may determine, in its sole discretion.
(c) OPTION GRANT. As of November 18, 2002, the Company shall
grant the Executive an option to purchase 320,000 common shares, without par
value, of the Company (the "Option") pursuant to the terms and conditions set
forth in the Nonqualified Stock Option Agreement attached to this Agreement as
Exhibit A (the "Option Agreement"). The Executive acknowledges and agrees that
he will not be eligible to receive annual grants of options to purchase common
shares of the Company during the Company's fiscal 2003, 2004 and 2005 years,
unless any such grant is authorized by the Human Resources and Compensation
Subcommittee of the Board of Directors of the Company.
(d) EMPLOYEE BENEFITS. During the Employment Period, 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 (or
consulting employees, in the event of a Part-Time Period) 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
during the Employment Period 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.
(f) RETIREMENT. If the Executive's employment with the Company
has not terminated before January 31, 2003, thereafter, the Executive will be
eligible for "retirement," in each case within the meaning of the Company's
various stock option plans; PROVIDED, HOWEVER, that the parties hereto agree and
acknowledge that in the event of the Executive's retirement on or after November
18, 2003, a pro-rata portion of the Option granted pursuant to Section 3(c) of
this Agreement (pro-rated as set forth in Section 3(b)of the Option Agreement)
shall vest and become exercisable on the Vesting Date set forth on page 1 of the
Option Agreement and shall remain exercisable thereafter for the remainder of
the term of the Option. Nothing in this Agreement shall limit the ability of the
Executive to be eligible for such retirement for other reasons or at other
times, including at an earlier time, upon the then applicable terms and
conditions.
4. EMPLOYMENT TERMINATION. (a) TERMINATION BY THE COMPANY.
During the Employment Period, 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 his 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 ("Incapacity"),
in either instance during the Employment Period; (ii) for
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"Cause," defined as (A) any willful or grossly negligent conduct by Executive
that demonstrably and materially injures the Company; (B) any act by the
Executive of fraud or intentional misrepresentation or embezzlement,
misappropriation or conversion of assets of the Company or any subsidiary; (C)
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; (D) the Executive's intentional and repeated violation of the written
policies or procedures of the Company; (E) the Executive violating any provision
of Section 5 of this Agreement; or (F) 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 30th day after
such notice is given (hereinafter, the date on which the Executive ceases to be
an employee of the Company for any reason (including, without limitation, by
action of the Executive and retirement), whether or not during the Employment
Period, is referred to as the "Date of Termination").
(b) TERMINATION BY THE EXECUTIVE. The Executive may terminate
his employment during the Employment Period for any reason upon 30 days advanced
written notice to the Company.
(c) CONSEQUENCES OF TERMINATION BY THE COMPANY WITHOUT CAUSE.
In the event the Executive's employment is terminated by the Company without
Cause prior to January 31, 2003, the Executive shall be entitled to change his
status to that of a consulting employee as set forth in Section 1 hereof. In the
event the Executive is terminated by the Company without Cause after attaining
age 55, the Executive will be deemed to have "retired" for purposes of
outstanding options held by the Executive under the Company's Amended and
Restated Equity Incentive Plan, except with respect to the Option granted under
the Option Agreement. In addition to such rights, and not in lieu thereof (i) if
the Executive is terminated without Cause during the Employment Period, or, (ii)
if, in the event of the expiration of the Employment Period, the Executive
continues employment with the Company beyond the date of the expiration of the
Employment Period (hereinafter defined as the Executive's period of "Employment
Continuation"), and under such circumstances the Executive is terminated without
Cause during the Executive's Employment Continuation and prior to the fifth
anniversary of the Effective Date, then in either case, the Executive shall not
be entitled to any further compensation or benefits provided for under this
Agreement except (x) as provided in the Option Agreement and (y) as provided in
the following sentence. Under such circumstance, the Company shall:
(i) pay to the Executive an amount equal to two times
the sum of (x) the Executive's Base Salary, at the rate in effect on the day
immediately prior to the Date of Termination and (y) the Executive's Annual
Bonus target for the fiscal year of the Company in which the Date of Termination
occurs, such amount to be paid monthly in equal
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installments over the twenty-four (24) month period immediately following the
Date of Termination; and
(ii) provide the vested benefits, if any, required to
be paid or provided by law.
For the avoidance of doubt, in the event of the Executive's termination without
Cause during the Executive's Employment Continuation, the Executive shall only
receive severance benefits pursuant to this Section 4(c) if he does not receive
severance benefits upon or after the expiration of the Employment Period under
this Agreement or otherwise. In addition, notwithstanding anything in the Option
Agreement to the contrary, in the event that the Company terminates the
Executive without Cause during the Employment Period following a change in
corporate structure or personnel of the Company (or similar event) which results
in the Executive ceasing to report directly to Xxxxxx X. Xxxxxx prior to such
termination, the entire Option shall vest and become exercisable on the Vesting
Date set forth on page 1 of the Option Agreement, and shall remain exercisable
thereafter for the remainder of the term of the Option. Notwithstanding the
foregoing, the Company's obligations to the Executive under this Section 4(c)
shall immediately terminate, and the Executive shall not be entitled to any
further compensation or benefits provided for under this Agreement or the Option
Agreement in the event that the Executive violates any of the provisions of
Section 5 of this Agreement.
(d) OTHER EMPLOYMENT TERMINATIONS. If, during the Employment
Period, the Executive's employment is terminated for any reason other than by
the Company without Cause, including, without limitation, termination by the
Executive, the Executive's retirement, Incapacity, death, or termination by the
Company for Cause (subject only to Section 4(e) of this Agreement), the
Executive shall not be entitled to any compensation provided for under this
Agreement, other than (i) the Base Salary or Consulting Base Salary, as
applicable, through the Date of Termination; (ii) benefits under any long-term
disability insurance coverage in the case of termination because of Incapacity;
(iii) vested benefits, if any, required to be paid or provided by law; and (iv)
the benefits provided for under the Option Agreement, if any.
(e) TERMINATION AFTER A CHANGE OF CONTROL. In the event that
during the Employment Period, or during the Executive's Employment Continuation
but prior to the fifth anniversary of the Effective Date (i) the Executive's
employment is terminated by the Company within one year after a "Change of
Control" (as defined in the Cardinal Health, Inc. Amended and Restated Equity
Incentive Plan, as amended from time to time, or any successor plan thereto) for
any reason other than because of the Executive's death, retirement, Incapacity
or by the Company for Cause, or (ii) the Executive has experienced a material
diminution of his duties under Section 2(a) of this Agreement, other than
actions that are not taken in bad faith and are remedied by the Company within
ten business days after receipt of written notice thereof from the Executive,
and as a result the Executive terminates his employment within one year after a
Change of Control (as so defined), then the Company shall pay to the Executive
the severance payments and benefits as set forth in Section 4(c) of this
Agreement.
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5. COVENANTS. (a) INTRODUCTION. The parties acknowledge that
the provisions and covenants contained in this Section 5 are ancillary and
material to this Agreement and the Option 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 5 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 11(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 5 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 5(b)) ("Confidential Information"). For
the purposes of this Section 5(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 the Restricted Period (as defined in this Section
5(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 twenty four months an
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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 that ends 24 months after the Executive's Date
of Termination.
(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 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.
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(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 the Employment Period
and any subsequent period when 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, during and after the Employment Period, 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 5(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 5; and (C) remedies at law (such
as monetary damages) for any breach of the Executive's obligations under this
Section 5 would be inadequate. The Executive therefore agrees and consents that
if the Executive commits any breach of a covenant under this Section 5 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
5, the Company shall have the right 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 amount equal to the gross gain realized or
obtained by the Executive resulting from the vesting of the restricted stock
(the "Additional Incentive Shares") granted to the Executive pursuant to the
Restricted Shares Agreement attached to the
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Prior Agreement as Exhibit A, measured at the date of vesting (i.e., the market
value of the Additional Incentive Shares on the vesting date);
B. 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; and
C. if the Executive has exercised any stock options
granted to the Executive by the Cardinal Group (or any part thereof) within
three years before a violation of Section 5(b), 5(c), 5(f) or 5(g) or within one
year before a violation of Section 5(d) or 5(e), an amount equal to the gross
option gain realized or obtained by the Executive or any transferee resulting
from the exercise of such stock option, measured at the date of exercise (i.e.,
the difference between the fair market value of the purchased stock on the date
of exercise and the exercise price paid by the Executive therefor).
In addition to the foregoing, in the event of a violation of this Section 5, all
outstanding stock options granted to the Executive by the Cardinal Group (or any
part thereof) that have not been exercised shall immediately and automatically
terminate, be forfeited, and cease to be exercisable at any time.
(iii) With respect to any provision of this Section 5 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 5 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.
6. 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 9 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
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Cardinal Group or any entity merged with or into the Cardinal Group (or any part
thereof) except to the extent provided for in this Agreement.
7. 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 of the provisions of this Agreement
and such amounts shall not be reduced, regardless of whether the Executive
obtains other employment.
8. 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
8(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.
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn.: Chief Legal Officer
Facsimile: (000) 000-0000
If to the Executive: At the Executive's residence
address most recently on the
books and records of 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.
9. 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, including, without
limitation, the Prior Agreement.
10. 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.
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(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
both the Company as defined above and any such successor that assumes and agrees
to perform this Agreement, by operation of law or otherwise.
11. 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
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(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 Employment Period shall survive such
event and shall remain binding upon such parties.
(i) EMPLOYMENT CONTINUATION PERIOD. The parties hereto agree
and acknowledge that the Executive shall have no rights to any payments,
benefits or otherwise under this Agreement during any period of the Executive's
Employment Continuation other than as specifically set forth in Sections 4(c)
and 4(e) of this Agreement.
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IN WITNESS WHEREOF, the Executive has hereunto set his hand
and, pursuant to the authorization of the Human Resources and Compensation
Subcommittee 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/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
CARDINAL HEALTH, INC.
By /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
-13-
Exhibit A
CARDINAL HEALTH, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
Dollars at Work: $[ ]
Grant Date: November 18, 2002
Exercise Price: $[ ]
Vesting Date: November 18, 2005
Expiration Date: November 18, 2012
Cardinal Health, Inc., an Ohio corporation (the "Company"),
has granted Xxxxx X. Xxxxxx ("Grantee"), an option (the "Option") to purchase
320,000 shares (the "Shares") of common stock in the Company for a total
purchase price (typically known as Dollars at Work) of $[ ], (i.e., the
equivalent of [stock price] for each full Share). The Option has been granted
pursuant to the Cardinal Health, Inc. Amended and Restated Equity Incentive
Plan, as amended (the "Plan"), and shall include and 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. This option shall be exercisable at any time
on or after November 18, 2005, (subject to Section 10 of the Plan with respect
to acceleration of the vesting of the Option upon a Change of Control), and
prior to November 18, 2012 (subject to the termination provisions of the Plan
and this agreement).
By:______________________________
Xxxxxx X. Xxxxxx
Chairman and CEO
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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 shall be exercised from time to time by
written notice to the Company which shall:
(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 the 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 the Grantee's death,
by the Grantee by will or pursuant to the laws of descent and distribution, and
(II) by the Grantee during the 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 the Grantee, or any other
persons sharing the Grantee's household (other than tenants or employees)
("Family Members"), (b) a trust or trusts for the primary benefit of the Grantee
or such Family Members, (c) a foundation in which the Grantee or such Family
Members control the management of assets, or (d) a partnership in which the
Grantee or such Family Members are the majority or controlling partners,
provided 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
subitems 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 fifty percent of the voting interests are owned
by the Grantee or Family Members in exchange for an interest in that entity
shall be considered to be a transfer for consideration. Within ten days of any
transfer, the 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 the Grantee provided in item 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 item 3. The Company shall have no obligation to
notify any transferee of the Grantee's termination of employment with the
Company for any reason. The conduct prohibited of Grantee in items 5 and 6
hereof
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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 the Grantee to the same extent as would have been the case of the Grantee
had the Option not been transferred. The Grantee shall remain subject to the
recoupment provisions of items 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 the 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 sixty days of such
death, any unvested portion of the Option shall vest upon and become exercisable
in full from and after the sixtieth day after such death. The Option may
thereafter be exercised by any transferee of the Option, if applicable, or by
the legal representative of the estate or by the legatee of the Grantee under
the will of the 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 expiration of the stated term of the Option, whichever period is
shorter.
(b) TERMINATION WITHOUT CAUSE OR BY REASON OF DISABILITY OR RETIREMENT. For
purposes of this agreement, the period beginning on the date the Option first
vests and the expiration of the term of the Option is referred to as the
"Exercise Period."
(i) RETIREMENT. In the event of the Grantee's retirement from the
Cardinal Group from and after November 18, 2003, then,
notwithstanding anything else in this agreement to the contrary, a
pro-rata portion of the Option shall vest on the Vesting Date set
forth on page 1 of this agreement as follows: (V) if the Grantee
retires on or after November 18, 2003 but prior to May 18, 2004, the
Option shall vest on the Vesting Date with respect to 33,000 Shares;
(W) if the Grantee retires after May 18, 2004 but prior to November
18, 2004, the Option shall vest on the Vesting Date with respect to
67,000 Shares; (X) if the Grantee retires after November 18, 2004
but prior to May 18, 2005, the Option shall vest on the Vesting Date
with respect to 120,000 Shares; (Y) if the Grantee retires after May
18, 2005 but prior to November 18, 2005, the Option shall vest on
the Vesting Date with respect to 170,000 Shares; and (Z) if the
Grantee retires on or after November 18, 2005, the Option will be
fully vested; and, in each such case, the portion of the Option that
is vested may thereafter be exercised by the Grantee (or any
transferee, if applicable) until the expiration of the stated term
of the Option. Notwithstanding the foregoing, if the Grantee dies
after such retirement but before the expiration of the Exercise
Period, unless otherwise determined by the Committee within 60 days
of such death, the pro-rata portion of Shares with respect to the
Option that would have vested pursuant to the immediately previous
sentence on the Vesting Date based upon the date of the Grantee's
retirement hereunder shall vest upon, and the Option may
-16-
be exercised by any transferee of the Option, if applicable, or by
the legal representative of the estate or by the legatee of the
Grantee under the will of the Grantee from and after, the sixtieth
day after such death 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 expiration of the Exercise Period,
whichever period is shorter.
(ii) DISABILITY. If Grantee's employment with the Cardinal Group is
terminated due to disability (as defined in the Plan) or Incapacity
(as defined in the Employment Agreement dated as of November 13,
2002 between the Company and Grantee (the "Employment Agreement"),
then any unvested portion of the Option will vest on the Vesting
Date indicated on the first page of this agreement and may
thereafter be exercised by the Grantee (or any transferee, if
applicable) until the expiration of the stated term of the Option.
Notwithstanding the foregoing, if the Grantee dies after such
disability or Incapacity but before the expiration of the Exercise
Period, unless otherwise determined by the Committee within 60 days
of such death, any unvested portion of the Option shall vest upon,
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 the Grantee under the will of the Grantee from and after,
the sixtieth day after such death 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 expiration of the
Exercise Period, whichever period is shorter.
(iii) TERMINATION WITHOUT CAUSE. If the Grantee's employment by the
Cardinal Group is terminated without Cause (as used in this
agreement, "Cause" shall have the meaning set forth in the
Employment Agreement), then any vested and unexercised portion of
the Option may thereafter be exercised by the Grantee (or any
transferee, if applicable) until the expiration of the Exercise
Period, and any portion of the Option that is unvested as of the
date of such termination shall be forfeited; PROVIDED, HOWEVER, that
if such termination without Cause occurs after January 31, 2003,
then a pro-rata portion of the Option shall vest on the Vesting Date
set forth on page 1 of this agreement as follows: (V) if such
termination occurs on or after November 18, 2003 but prior to May
18, 2004, the Option shall vest on the Vesting Date with respect to
33,000 Shares; (W) if such termination occurs after May 18, 2004 but
prior to November 18, 2004, the Option shall vest on the Vesting
Date with respect to 67,000 Shares; (X) if such termination occurs
after November 18, 2004 but prior to May 18, 2005, the Option shall
vest on the Vesting Date with respect to 120,000 Shares; (Y) if such
termination occurs after May 18, 2005 but prior to November 18,
2005, the Option shall vest on the Vesting Date with respect to
170,000 Shares; and (Z) if such termination occurs on or after
November 18, 2005, the Option will be fully vested; and PROVIDED,
FURTHER, that if such termination occurs following a change in
corporate structure or personnel of the
-17-
Company (or similar event) which results in the Executive ceasing to
report directly to Xxxxxx X. Xxxxxx prior to such termination, the
remaining unvested portion of the Option shall vest and become
exercisable on the Vesting Date, and shall remain exercisable
thereafter for the remainder of the Exercise Period. Notwithstanding
the foregoing, if the Grantee dies after such termination without
Cause but before the expiration of the Exercise Period, unless
otherwise determined by the Committee within 60 days of such death,
any unvested portion of the Option shall vest upon, 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 the
Grantee under the will of the Grantee from and after, the sixtieth
day after such death 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 expiration of the Exercise Period,
whichever period is shorter.
(c) TERMINATION BY THE CARDINAL GROUP FOR CAUSE. If the Grantee's employment by
the Cardinal Group is terminated for Cause, all outstanding Options that have
not been exercised shall immediately and automatically terminate, be forfeited,
and cease to be exercisable at any time without regard to whether such Options
are vested.
(d) OTHER TERMINATION OF EMPLOYMENT. If the Grantee's employment by the Cardinal
Group terminates for any reason other than death, retirement, disability,
Incapacity or termination by the Company with or without Cause (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, the Grantee (or any transferee, if applicable) will have ninety
days (or such other period as the Committee may specify at or after grant or
termination) from the date of termination or until the expiration of the stated
term of the Option, whichever period is shorter, to exercise any portion of the
Option that is then vested and exercisable on the date of termination.
4. RESTRICTIONS ON EXERCISE. The Option is subject to all restrictions in this
agreement and/or in the Plan, and is subject to the covenants contained in
Section 5 of the Employment Agreement. As a condition of any exercise of the
Option, the Company may require the Grantee or his 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 items 5 and 6 of this agreement or any employment or severance
agreement between any member of the Cardinal Group and the Grantee, including
without limitation the terms of Section 5 of the Employment Agreement)
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
-18-
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 Certificate of Compliance with Company Business Ethics
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 an employee, representative,
officer or director of the Cardinal Group at any time within the twelve months
prior to the termination of Grantee's employment with the Cardinal Group; any
action by Grantee and/or his 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 and/or
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, including, without limitation, the terms of Section 5 of
the Employment Agreement. As used herein, "Competitor Triggering Conduct" shall
include, either during Grantee's employment or within two years following
Grantee's termination of employment with the Cardinal Group, 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"), 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 such
Triggering Conduct during the time period set forth in the preceding sentence or
in Competitor Triggering Conduct during the time period set forth in Section 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) the 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
the 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 Option Shares on the exercise date and the exercise price paid for such
Option Shares), 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
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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. The Grantee may be released from Grantee's
obligations under this item 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 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 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 Certificate
of Compliance with Company Business Ethics Policies. 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 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 this item 6. Further, the parties agree and acknowledge that the
provisions contained in items 5 and 6 are material provisions to and part of an
otherwise enforceable agreement at the time the agreement is made.
7. RIGHT OF SET-OFF. By accepting this Option, 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.
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 items 5 and 6 of this agreement are
reasonable in nature, are fundamental for the protection of the Company's
legitimate business
-20-
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.
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.
-21-
ACCEPTANCE OF AGREEMENT
The 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 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 under this agreement subject to all provisions of the
Plan and this agreement. The 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 August 8, 2001 pertaining to the Plan.
----------------------------------
Signature
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Print Name
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Grantee's Social Security Number
----------------------------------
Date
-22-
