Exhibit 10.04
DIRECTORS' STOCK OPTION AGREEMENT
UNDER THE
OUTSIDE DIRECTORS EQUITY INCENTIVE PLAN
Cardinal Health, Inc., an Ohio corporation (the "Company"),
has granted to [director name] (the "Grantee"), an option (the "Option") to
purchase [# of shares] Common Shares, without par value (the "Shares"), of the
Company for a total purchase price (the "Option Price") of (i.e., the
equivalent of [stock price] for each full Share). The Option has been granted
pursuant to the Cardinal Health, Inc. Outside Directors Equity Incentive Plan
(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
following 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 and
prior to .
Section 1. Method of Exercise. At any time when the Option is
exercisable under the Plan, the Option shall be exercisable from time to time by
written notice to the Company (the date such notice is received by the Company,
the "Exercise Date") which shall:
(a) state that the Option is thereby being exercised, the
number of Shares with respect to which the Option is
being exercised, each person in whose name any
certificates for the Shares should be registered and
his or her address and social security number;
(b) be signed by the person or persons entitled to
exercise the Option and, 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; and
(c) contain such representations, warranties and
agreements with respect to the investment intent of
such person or persons in form and substance
satisfactory to counsel for the Company.
Section 2. Payment of Exercise Price. The full exercise price
for the Option shall be paid to the Company: (i) in cash, (ii) by delivery of
Shares with a fair market value equal to the total exercise price at the time of
exercise, (iii) by attestation of ownership of such already-owned Shares, (iv)
by delivery of cash on the extension of credit by a broker-dealer to whom the
Grantee (or other person authorized to exercise the Option) has submitted a
notice of exercise or an irrevocable election to effect such extension of
credit, or (v) by a combination of the preceding methods. Any Shares delivered
or attested to in payment of an exercise price shall be valued as of the
Exercise Date.
Section 3. 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) (collectively, "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, 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 Subsections II(a), (b), or (c), above,
with respect to the original Grantee. 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 Grantee's termination from the Board
of Directors of the Company (the "Board") provided in Section 4 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 Section 4. The conduct prohibited of Grantee in Section 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 the Grantee to the same extent as would have been the case of the Grantee
had the Option not been transferred. The Company shall have no obligation to
notify any transferee of the Option of the Grantee's termination as a member of
the Board for any reason. The Grantee shall remain subject to the recoupment
provisions of Section 6 of this agreement and tax withholding provisions of
Section 9(d) of the Plan following transfer of the Option.
Section 4. Termination of Relationship. If a Grantee ceases to
be a member of the Board for any reason other than for Cause (as defined in
Section 5 below), then all Options or any unexercised portion of such Options
which otherwise are exercisable by such Grantee (or any transferee) shall remain
exercisable until expiration of the original term of such Option.
Section 5. Termination for Cause. Notwithstanding any
provision to the contrary in the Plan or in this agreement, upon the discharge
of the Grantee as a director of the Company for Cause (as defined below), all
unexercised Options awarded to such Grantee (whether then held by Grantee or any
transferee) shall immediately lapse and be of no further force or effect. For
purposes of this agreement, "Cause" means on account of any act of fraud or
intentional misrepresentation or embezzlement, misappropriation or conversion of
assets of the Company or any subsidiary, or the intentional and repeated
violation of the written policies or procedures of the Company.
Section 6. Special Forfeiture/Repayment Rules. For so long as
Grantee continues as a Director of the Company and for three years following
Grantee's termination as a Director of the Company, 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 set forth in the definition of such conduct below, 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 to 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 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
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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 service as a
Director of the Company, but including any period between the time of Grantee's
termination and the time Grantee engaged in Competitor Triggering Conduct.
As used herein, "Triggering Conduct" shall include disclosing
or using in any capacity other than as necessary in the performance of duties as
a Director of the Company any confidential information, trade secrets or other
business sensitive information or material concerning the Company or its
subsidiaries (collectively, the "Cardinal Group"); violation of Company
policies, including conduct which would constitute a breach of the then-most
recent version of the Certificate 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 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 twelve months prior to the termination of
service with the Cardinal Group; any action by Grantee and/or Grantee's
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 benefit or severance agreement
with a member of the Cardinal Group. As used herein, "Competitor Triggering
Conduct" shall include, either during or within one year following Grantee's
termination of service as a Director of the Company, accepting employment with
or serving as a consultant, advisor, or 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 service as a Director of the Company 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. For purposes of this agreement, the nature and extent of Grantee's
activities disclosed to and reviewed by, if any, the Company's Nominating and
Governance Committee (the "Nominating Committee") prior to the date of Grantee's
termination of service shall not, unless specified to the contrary by the
Nominating Committee in a written notice given to Grantee, be deemed to be
Competitor Triggering Conduct. The Committee shall resolve in good faith any
disputes concerning whether particular conduct constitutes Triggering Conduct or
Competitor Triggering Conduct, and any such determination by the Committee shall
be conclusive and binding on all interested persons. The Grantee may be released
from Grantee's obligations under this Section 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 Section 6 constitutes a so-called "noncompete"
covenant. However, this Section 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 Section 6 and of the Grantee's
continuing obligations contained herein.
No provision 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
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then-most recent version of the Certificate of Compliance with Company Policies
and/or Certificate of Compliance with Company Business Ethics Policies;
provided, however, that to the extent that any provisions contained in any other
agreement are inconsistent 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 Section
6 are being made for the benefit of the Company in consideration of Grantee's
receipt of the Option, 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 this Section
6 are ancillary to or part of an otherwise enforceable agreement at the time the
agreement is made.
Section 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 Director fees, severance payments, or
other fringe benefits) to the extent of the amounts owed to the Cardinal Group
by the Grantee under this agreement.
Section 8. Restrictions on Exercise. The Option is subject to
all restrictions in this agreement or in the Plan. As a condition of any
exercise of the Option, the Company may require the Grantee or his or her
transferee or successor to make such representation and warranties and to enter
into such agreements as are necessary to comply with any applicable law or
regulation or to confirm any factual matters reasonably requested by counsel for
the Company.
Section 9. Governing Law/Venue. This agreement shall be
governed by the laws of the State of Ohio, without regard to principles of
conflicts of laws, 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 the 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 Section 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 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 the restrictions and covenants
of Grantee contained in 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
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objectives intended by such provision, without invalidating or rendering
unenforceable the remaining provisions of this agreement.
Section 10. 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.
CARDINAL HEALTH, INC.
DATE OF GRANT: By: _____________________________________
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ACCEPTANCE OF AGREEMENT
The Grantee hereby: (a) acknowledges receiving a copy of the
Plan, which has either been previously delivered or is attached to this
Agreement, and represents that he/she is familiar with all provisions of the
Plan; and (b) accepts this Agreement and the Option granted to him/her 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 to Shareholders and communications routinely distributed to the
Company's shareholders and a copy of the Plan Description dated November 5,
2003, pertaining to the Plan.
_________________________________________
Grantee Signature
_________________________________________
Social Security Number
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