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EXHIBIT 99(e)
BINDLEY WESTERN INDUSTRIES, INC.
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1998 NON-QUALIFIED STOCK OPTION PLAN
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(AS AMENDED)
1. PLAN PURPOSE. The purpose of the Plan is to promote the long-term
interests of the Corporation and its shareholders by providing a means for
attracting and retaining employees of the Corporation and its Affiliates.
2. DEFINITIONS. The following definitions are applicable to the Plan:
"Affiliate" -- means any "parent corporation" or "subsidiary corporation"
of the Corporation as such terms are defined in Section 424(e) and (f),
respectively, of the Code.
"Award" -- means the grant by the Committee of a Non-Qualified Stock Option
as provided in the Plan.
"Board" -- means the Board of Directors of the Corporation.
"Change in Control" -- means each of the events specified in the following
clauses (i) through (iii): (i) any third person, including a "group" as defined
in Section 13(d)(3) of the Exchange Act shall, after the date of the adoption of
the Plan by the Board, first become the beneficial owner of shares of the
Corporation with respect to which 25% or more of the total number of votes for
the election of the Board of Directors of the Corporation may be cast, (ii) as a
result of, or in connection with, any cash tender offer, exchange offer, merger
or other business combination, sale of assets or contested election, or
combination of the foregoing, the persons who were directors of the Corporation
shall cease to constitute a majority of the Board of Directors of the
Corporation or (iii) the stockholders of the Corporation shall approve an
agreement providing either for a transaction in which the Corporation will cease
to be an independent publicly owned entity or for a sale or other disposition of
all or substantially all the assets of the Corporation; provided, however, that
the occurrence of any of such events shall not be deemed a Change in Control if,
prior to such occurrence, a resolution specifically approving such occurrence
shall have been adopted by at least a majority of the Board of Directors of the
Corporation.
"Code" -- means the Internal Revenue Code of 1986, as amended.
"Committee" -- means the Committee referred to in Section 3 hereof.
"Corporation" -- means Bindley Western Industries, Inc., an Indiana
corporation.
"Continuous Service" -- means the absence of any interruption or
termination of service as an employee of the Corporation or an Affiliate.
Service shall not be considered interrupted in the case of sick leave, military
leave or any other leave of absence approved by the Corporation or in the case
of any transfer between the Corporation and an Affiliate or any successor to the
Corporation.
"Employee" -- means any person who is employed by the Corporation or any
Affiliate.
"Exchange Act" -- means the Securities Exchange Act of 1934, as amended.
"Exercise Price" -- means the price per Share at which the Shares subject
to an Option may be purchased upon exercise of such Option.
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"Market Value" -- means the last reported sale price on the date in
question (or, if there is no reported sale on such date, on the last preceding
date on which any reported sale occurred) of one Share on the principal exchange
on which the Shares are listed for trading, or if the Shares are not listed for
trading on any exchange, on the NASDAQ National Market System or any similar
system then in use, or, if the Shares are not listed on the NASDAQ National
Market System, the mean between the closing high bid and low asked quotations of
one Share on the date in question as reported by NASDAQ or any similar system
then in use, or, if no such quotations are available, the fair market value on
such date of one Share as the Committee shall determine.
"Non-Qualified Stock Option" -- means an option to purchase Shares granted
by the Committee pursuant to the terms of the Plan, which option is not intended
to qualify under Section 422 of the Code.
"Option" -- means a Non-Qualified Stock Option.
"Participant" -- means any employee of the Corporation or an Affiliate,
other than an officer or director of the Corporation, who is selected by the
Committee to receive an Award.
"Plan" -- means this Non-Qualified Stock Option Plan of the Corporation.
"Reorganization" -- means the liquidation or dissolution of the Corporation
or any merger, consolidation or combination of the Corporation (other than a
merger, consolidation or combination in which the Corporation is the continuing
entity and which does not result in the outstanding Shares being converted into
or exchanged for different securities, cash or other property or any combination
thereof).
"Securities Act" -- means the Securities Act of 1933, as amended.
"Shares" -- means the Common Stock, $.01 par value, of the Corporation.
3. ADMINISTRATION. The Plan shall be administered by the Compensation and
Stock Option Committee of the Board (the "Committee"), which shall consist of
two or more members of the Board. The members of the Committee shall be
appointed by the Board. Except as limited by the express provisions of the Plan,
the Committee shall have sole and complete authority and discretion to (a)
select Participants and grant Awards; (b) determine the number of Shares to be
subject to types of Awards generally, as well as to individual Awards granted
under the Plan; (c) determine the terms and conditions upon which Awards shall
be granted under the Plan; (d) prescribe the form and terms of instruments
evidencing such grants; (e) establish procedures and regulations for the
administration of the Plan; (f) interpret the Plan; and (g) make all
determinations deemed necessary or advisable for the administration of the Plan.
A majority of the Committee shall constitute a quorum, and the acts of
a majority of the members present at any meeting at which a quorum is present,
or acts approved in writing by all members of the Committee without a meeting,
shall be acts of the Committee. All determinations and decisions made by the
Committee pursuant to the provisions of the Plan shall be final, conclusive, and
binding on all persons, and shall be given the maximum deference permitted by
law.
4. PARTICIPANTS. The Committee may select from time to time Participants in
the Plan from those employees of the Corporation or its Affiliates who, in the
opinion of the Committee, have the capacity for contributing in a substantial
measure to the successful performance of the Corporation or its Affiliates;
provided, however, that the Committee shall not select as a Participant any
individual who is an officer or director of the Corporation at the time of such
selection.
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5. SHARES SUBJECT TO PLAN. Subject to adjustment by the operation of
Section 9 hereof, the maximum number of Shares with respect to which Awards may
be made under the Plan is 1,200,000 Shares, all of which are currently held by
the Corporation as treasury shares. The number of Shares which may be granted
under the Plan to any Participant during any calendar year of the Plan under
Awards shall not exceed 50,000 Shares. The Shares with respect to which Awards
may be made under the Plan may only be Shares held by the Corporation as
treasury shares. The Corporation shall at all times hold that number of Shares
as treasury shares as would be required to be delivered upon the exercise of all
Options then outstanding under the Plan. With respect to any Option which
terminates or is surrendered for cancellation, new Awards may be granted under
the Plan with respect to the number of Shares as to which such termination or
surrender has occurred.
6. GENERAL TERMS AND CONDITIONS OF OPTIONS. The Committee shall have full
and complete authority and discretion, except as expressly limited by the Plan,
to grant Options and to provide the terms and conditions (which need not be
identical among Participants) thereof. In particular, the Committee shall
prescribe the following terms and conditions: (i) the Exercise Price, (ii) the
number of Shares subject to, and the expiration date of, any Option, (iii) the
manner, time and rate (cumulative or otherwise) of exercise of such Option, and
(iv) the restrictions, if any, to be placed upon such Option or upon Shares
which may be issued upon exercise of such Option. The Committee may, as a
condition of granting any Option, require that a Participant agree to surrender
for cancellation one or more Options previously granted to such Participant.
7. EXERCISE OF OPTIONS.
(a) Except as provided in Section 12, an Option granted under the Plan
shall be exercisable during the lifetime of the Participant to whom such Option
was granted only by such Participant, and except as provided in Section 8, no
Option may be exercised unless at the time the Participant exercises the Option,
the Participant has maintained Continuous Service since the date of the grant of
the Option.
(b) To exercise an Option under the Plan, the Participant must give
written notice to the Corporation or its designated agent specifying the number
of Shares with respect to which the Participant elects to exercise the Option
together with full payment of the Exercise Price. The date of exercise shall be
the date on which the notice is received by the Corporation or its designated
agent. Payment may be made either (i) in cash (including check, bank draft or
money order), (ii) by tendering Shares already owned by the Participant and
having a Market Value on the date of exercise equal to the Exercise Price, (iii)
by requesting that the Corporation or its designated agent withhold the value of
Shares sold upon exercise of the Option having a Market Value equal to the
Exercise Price, or (iv) by any other means determined by the Committee in its
sole discretion.
8. TERMINATION OF OPTIONS. Unless otherwise specifically provided by the
Committee, Options shall terminate as provided in this Section.
(a) Unless sooner terminated under the provisions of this Section,
Options shall expire on the earlier of the date specified by the Committee or
the expiration of ten (10) years from the date of grant.
(b) If the Continuous Service of a Participant is terminated for cause,
or voluntarily by the Participant for any reason other than death, disability or
retirement, all rights under any Option of such Participant shall expire
immediately upon such cessation of Continuous Service, and the Participant shall
(unless the Committee in its sole discretion waives this requirement) repay to
the Corporation within 10 days the amount of any gain realized by the
Participant upon any exercise within the 90-day period prior to the cessation of
Continuous Service. If the Continuous Service of a Participant is terminated by
reason
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of death, disability or retirement, such Participant may exercise such Option,
but only to the extent such Participant was entitled to exercise such Option at
the date of such cessation, at any time during the remaining term of such
Option. If a Participant shall cease to maintain Continuous Service for any
reason other than those set forth above in this paragraph (b) of this Section 8,
such Participant may exercise such Option to the extent that such Participant
was entitled to exercise such Option at the date of such cessation but only
within the period of three (3) months immediately succeeding such cessation of
Continuous Service, and in no event after the expiration date of the subject
Option; provided, however, that such right of exercise after cessation of
Continuous Service shall not be available to a Participant if the Corporation
otherwise determines and so provides in the applicable instrument or instruments
evidencing the grant of such Option.
(c) In the event of the death of a Participant while in the Continuous
Service of the Corporation or an Affiliate, the person to whom any Option held
by the Participant at the time of his death is transferred by will or by the
laws of descent and distribution may exercise such Option on the same terms and
conditions that such Participant was entitled to exercise such Option. Following
the death of any Participant to whom an Option was granted under the Plan, the
Committee, as an alternative means of settlement of such Option, may elect to
pay to the person to whom such Option is transferred the amount by which the
Market Value per Share on the date of exercise of such Option shall exceed the
Exercise Price of such Option, multiplied by the number of Shares with respect
to which such Option is properly exercised. Any such settlement of an Option
shall be considered an exercise of such Option for all purposes of the Plan.
(d) Notwithstanding the provisions of the foregoing paragraphs of this
Section 8, the Committee may, in its sole discretion, establish different terms
and conditions pertaining to the effect of the cessation of Continuous Service,
to the extent permitted by applicable federal and state law.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of any change
in the outstanding Shares subsequent to the effective date of the Plan by reason
of any reorganization, recapitalization, stock split, stock dividend,
combination or exchange of shares, merger, consolidation or any change in the
corporate structure or Shares of the Corporation, the maximum aggregate number
and class of shares as to which Awards may be granted under the Plan and the
number and class of shares with respect to which Awards theretofore have been
granted under the Plan shall be appropriately adjusted by the Committee, whose
determination shall be conclusive.
10. EFFECT OF REORGANIZATION. Awards will be affected by a Reorganization
as follows:
(a) If the Reorganization is a dissolution or liquidation of the
Corporation then each outstanding Option shall terminate, but each Participant
to whom the Option was granted shall have the right, immediately prior to such
dissolution or liquidation, to exercise his Option in full and the Corporation
shall notify each Participant of such right within a reasonable period of time
prior to any such dissolution or liquidation.
(b) If the Reorganization is a merger or consolidation, other than a
Change in Control subject to Section 11 of this Agreement, upon the effective
date of such Reorganization each Optionee shall be entitled, upon exercise of
his Option in accordance with all of the terms and conditions of the Plan, to
receive in lieu of Shares, shares of such stock or other securities or
consideration as the holders of Shares shall be entitled to receive pursuant to
the terms of the Reorganization.
The adjustments contained in this Section and the manner of application of such
provisions shall be determined solely by the Committee.
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11. EFFECT OF CHANGE IN CONTROL. If a tender offer or exchange offer for
Shares (other than such an offer by the Corporation) is commenced, or if the
event specified in clause (iii) of the definition of a Change in Control
contained in Section 2 shall occur, unless the Committee shall have otherwise
provided in the instrument evidencing the grant of an Option, all Options
theretofore granted and not fully exercisable shall become exercisable in full
upon the happening of such event and shall remain so exercisable in accordance
with their terms; provided, however, that no Option which has previously been
exercised or otherwise terminated shall become exercisable.
12. ASSIGNMENTS AND TRANSFERS. Except as otherwise determined by the
Committee, no Award nor any right or interest of a Participant under the Plan in
any instrument evidencing any Award under the Plan may be assigned, encumbered
or transferred except, in the event of the death of a Participant, by will or
the laws of descent and distribution.
13. EMPLOYEE RIGHTS UNDER THE PLAN. No employee or other person shall have
a right to be selected as a Participant nor, having been so selected, to be
selected again as a Participant and no employee or other person shall have any
claim or right to be granted an Award under the Plan or under any other
incentive or similar plan of the Corporation or any Affiliate. Neither the Plan
nor any action taken thereunder shall be construed as giving any employee any
right to be retained in the employ of the Corporation or any Affiliate.
14. DELIVERY AND REGISTRATION OF STOCK. The Corporation's obligation to
deliver Shares with respect to an Award shall, if the Committee so requests, be
conditioned upon the receipt of a representation as to the investment intention
of the Participant to whom such Shares are to be delivered, in such form as the
Corporation shall determine to be necessary or advisable to comply with the
provisions of the Securities Act or any other applicable federal or state
securities legislation. It may be provided that any representation requirement
shall become inoperative upon a registration of the Shares or other action
eliminating the necessity of such representation under the Securities Act or
other securities legislation. The Corporation shall not be required to deliver
any Shares under the Plan prior to (i) the admission of such shares to listing
on any stock exchange or system on which Shares may then be listed, and (ii) the
completion of such registration or other qualification of such Shares under any
state or federal law, rule or regulation, as the Corporation shall determine to
be necessary or advisable.
15. WITHHOLDING TAX. Where a Participant or other person is entitled to
receive Shares pursuant to the exercise of an Option pursuant to the Plan, the
Corporation, at the request of the Participant, shall (in lieu of requiring the
Participant or such other person to pay the Corporation the amount of any taxes
which the Corporation is required to withhold with respect to such Shares)
retain a number of such Shares sufficient to cover the minimum amount required
to be withheld.
16. TERMINATION, AMENDMENT AND MODIFICATION OF PLAN. The Board may at any
time terminate, and may at any time and from time to time and in any respect
amend or modify, the Plan; provided, however, that to the extent necessary and
desirable to comply with any applicable law or regulation, including
requirements of any stock exchange or NASDAQ system on which the Shares are
listed or quoted, shareholder approval of any Plan amendment shall be obtained
in such a manner and to such a degree as is required by the applicable law or
regulation; and provided, further, that no termination, amendment or
modification of the Plan shall in any manner affect any Award theretofore
granted pursuant to the Plan without the consent of the Participant to whom the
Award was granted or transferee of the Award.
17. EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective upon
its adoption by the Board of Directors of the Corporation and shall continue in
effect for a term of ten years from the date of adoption unless sooner
terminated under Section 16 hereof.
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