EX-10.38






Exhibit 10.38




CARDINAL HEALTH, INC.

NONQUALIFIED STOCK OPTION AGREEMENT




Dollars at Work*:




Grant Date:




Exercise Price:




Grant Vesting Date:




Grant Expiration Date:



Cardinal Health, Inc., an Ohio corporation (the “Company”), has granted to [employee name]
(“Grantee”), an option (the “Option”) to purchase [# of shares] common shares, without par value,
of the Company (the “Shares”) for a total purchase price of      , (i.e., the equivalent
of [stock price] for each full Share). The Option has been granted under the Cardinal Health, Inc.
Broadly-based Equity Incentive Plan, as amended (the “Plan”), and will include and be subject to
all provisions of the Plan, which are incorporated herein by reference, and will be subject to the
provisions of this agreement. Capitalized terms used in this agreement which are not specifically
defined will have the meanings ascribed to such terms in the Plan. This Option shall be
exercisable at any time on or after
and prior to.




	 	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	Robert D. Walter	 	 
	Chairman and CEO	 	 








 




			
	*	 	Dollars at Work and total purchase price may vary due to rounding (up to the dollar amount of one
full Share).



1. Method of Exercise and Payment of Price.




 









 










(a) Method of Exercise. At any time when the Option is exercisable under the Plan and this
agreement, the Option may be exercised from time to time by written notice to the Company which
will:




     (i) state the number of Shares with respect to which the Option is being exercised; and



     (ii) if the Option is being exercised by anyone other than Grantee, be accompanied by proof
satisfactory to counsel for the Company of the right of such person or persons to exercise the
Option under the Plan and all applicable laws and regulations.


(b) Payment of Price. The full exercise price for the Option shall be paid to the Company
as provided in the Plan.



2. Transferability. The Option shall be transferable (I) at Grantee’s death, by Grantee by
will or pursuant to the laws of descent and distribution, and (II) by Grantee during Grantee’s
lifetime, without payment of consideration, to (a) the spouse, former spouse, parents, stepparents,
grandparents, parents-in-law, siblings, siblings-in-law, children, stepchildren, children-in-law,
grandchildren, nieces or nephews of Grantee, or any other persons sharing Grantee’s household
(other than tenants or employees) (collectively, “Family Members”), (b) a trust or trusts for the
primary benefit of Grantee or such Family Members, (c) a foundation in which Grantee or such Family
Members control the management of assets, or (d) a partnership in which Grantee or such Family
Members are the majority or controlling partners; provided, however, that subsequent transfers of
the transferred Option shall be prohibited, except (X) if the transferee is an individual, at the
transferee’s death by the transferee by will or pursuant to the laws of descent and distribution,
and (Y) without payment of consideration to the individuals or entities listed in subparagraphs
II(a), (b) or (c), above, with respect to the original Grantee. The Human Resources and
Compensation Committee of the Board of Directors of the Company (the “Committee”) may, in its
discretion, permit transfers to other persons and entities as permitted by the Plan. Neither a
transfer under a domestic relations order in settlement of marital property rights nor a transfer
to an entity in which more than 50% of the voting interests are owned by Grantee or Family Members
in exchange for an interest in that entity shall be considered to be a transfer for consideration.
Within 10 days of any transfer, Grantee shall notify the Stock Option Administrator of the Company
in writing of the transfer. Following transfer, the Option shall continue to be subject to the
same terms and conditions as were applicable immediately prior to transfer and, except as otherwise
provided in the Plan or this agreement, references to the original Grantee shall be deemed to refer
to the transferee. The events of termination of employment of Grantee provided in paragraph 3
hereof shall continue to be applied with respect to the original Grantee, following which the
Option shall be exercisable by the transferee only to the extent, and for the periods, specified in
paragraph 3. The Company shall have no obligation to notify any transferee of Grantee’s
termination of employment with the Company for any reason. The conduct prohibited of Grantee in
paragraphs 5 and 6 hereof shall continue to be prohibited of Grantee following


2









 






transfer to the same extent as immediately prior to transfer and the Option (or its economic value, as applicable) shall
be subject to forfeiture by the transferee and recoupment from Grantee to the same extent as would
have been the case of Grantee had the Option not been transferred. Grantee shall remain subject to
the recoupment provisions of paragraphs 5 and 6 of this agreement and tax withholding provisions of
Section 10(d) of the Plan following transfer of the Option.



3. Termination of Relationship.



(a) Termination by Death. If Grantee’s employment by the Company and its subsidiaries
(collectively, the “Cardinal Group”) terminates by reason of death, then, unless otherwise
determined by the Committee within 60 days of such death, any unvested portion of the Option shall
vest upon and become exercisable in full from and after the 60th day after such death. The Option
may thereafter be exercised by any transferee of Grantee, if applicable, or by the legal
representative of the estate or by the legatee of Grantee under the will of Grantee for a period of
one year (or such other period as the Committee may specify at or after grant or death) from the
date of death or until the Grant Expiration Date, whichever period is shorter.



(b) Termination by Reason of Retirement or Disability. If Grantee’s employment by the
Cardinal Group terminates prior to the Grant Vesting Date by reason of retirement or disability
(each as defined in the Plan), then, unless otherwise determined by the Committee within 60 days of
such retirement or disability, a Ratable Portion (defined below) of the Option will vest on the
Grant Vesting Date. Such “Ratable Portion” shall be an amount equal to the number of Shares the
subject of the Option, multiplied by a fraction the numerator of which shall be the number of full
months between the Grant Date and the date of retirement or disability, and the denominator of
which shall be the number of full months from the Grant Date to the Grant Vesting Date. The Option
may be exercised after the Grant Vesting Date by Grantee (or any transferee, if applicable) until
the earlier of the fifth anniversary of the date of such retirement or disability or the Grant
Expiration Date (the “Exercise Period”); provided, however, that any vesting that would otherwise
occur during the 60-day period beginning immediately after such retirement or disability shall not
occur until the end of such 60-day period. If Grantee has at least 15 years of service with the
Cardinal Group at the time of retirement, the Option may be exercised after the Grant Vesting Date
by Grantee (or any transferee, if applicable) until the Grant Expiration Date. Notwithstanding the
foregoing, if Grantee dies after retirement or disability but before the expiration of the Exercise
Period, unless otherwise determined by the Committee within 60 days of such death, the Ratable
Portion of the Option shall vest upon the 60th day after such death, and the Option may be
exercised by any transferee of the Option, if applicable, or by the legal representative of the
estate or by the legatee of Grantee under the will of Grantee from and after the 60th day after
such death, for a period of one year (or such other period as the Committee may
specify at or after grant or death) from the date of death or until the expiration of the Exercise
Period, whichever period is shorter.




3









 







(c) Other Termination of Employment. If Grantee’s employment by the Cardinal Group
terminates for any reason other than death, retirement or disability (subject to Section 7 of the
Plan regarding acceleration of the vesting of the Option upon a Change of Control), any unexercised
portion of the Option which has not vested on such date of termination will automatically terminate
on the date of such termination. Unless otherwise determined by the Committee at or after grant or
termination, Grantee (or any transferee, if applicable) will have 90 days (or such other period as
the Committee may specify at or after grant or termination) from the date of termination or until
the Grant Expiration Date, whichever period is shorter, to exercise any portion of the Option that
is then vested and exercisable on the date of termination; provided, however, that if the
termination was for Cause, as determined by the Committee, the Option may be immediately canceled
by the Committee (whether then held by Grantee or any transferee).



4. Restrictions on Exercise. The Option is subject to all restrictions in this agreement
and/or in the Plan. As a condition of any exercise of the Option, the Company may require Grantee
or his or her transferee or successor to make any representation and warranty to comply with any
applicable law or regulation or to confirm any factual matters (including Grantee’s compliance with
the terms of paragraphs 5 and 6 of this agreement or any employment or severance agreement between
any member of the Cardinal Group and Grantee) reasonably requested by the Company.



5. Triggering Conduct/Competitor Triggering Conduct. As used in this agreement,
“Triggering Conduct” shall include disclosing or using in any capacity other than as necessary in
the performance of duties assigned by the Cardinal Group any confidential information, trade
secrets or other business sensitive information or material concerning the Cardinal Group;
violation of Company policies, including conduct which would constitute a breach of any of the
Certificates of Compliance with Company Policies and/or the Certificates of Compliance with Company
Business Ethics Policies signed by Grantee; directly or indirectly employing, contacting concerning
employment, or participating in any way in the recruitment for employment of (whether as an
employee, officer, director, agent, consultant or independent contractor), any person who was or is
an employee, representative, officer or director of the Cardinal Group at any time within the 12
months prior to the termination of Grantee’s employment with the Cardinal Group; any action by
Grantee and/or his or her representatives that either does or could reasonably be expected to
undermine, diminish or otherwise damage the relationship between the Cardinal Group and any of its
customers, potential customers, vendors and/or suppliers that were known to Grantee; and breaching
any provision of any employment or severance agreement with a member of the Cardinal Group. As
used in this agreement, “Competitor Triggering Conduct” shall include, either during Grantee’s
employment or within one year following Grantee’s termination of employment with the Cardinal
Group, accepting employment with or serving as a consultant or advisor or in any other capacity to
an entity that is in competition with the business conducted by any member of the
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


4









 






during Grantee’s employment with the Cardinal Group
and such information would aid the Competitor because the threat of disclosure of such information
is so great that, for purposes of this agreement, it must be assumed that such disclosure would
occur.



6. Special Forfeiture/Repayment Rules. For so long as Grantee continues as an employee
with the Cardinal Group and for three years following Grantee’s termination of employment with the
Cardinal Group regardless of the reason, Grantee agrees not to engage in Triggering Conduct. If
Grantee engages in Triggering Conduct during the time period set forth in the preceding sentence or
in Competitor Triggering Conduct during the time period referenced in the definition of “Competitor
Triggering Conduct” set forth in paragraph 5 above, then:



(a) the Option (or any part thereof that has not been exercised) shall immediately and
automatically terminate, be forfeited, and shall cease to be exercisable at any time; and



(b) Grantee shall, within 30 days following written notice from the Company, pay the Company an
amount equal to the gross option gain realized or obtained by Grantee or any transferee resulting
from the exercise of such Option, measured at the date of exercise (i.e., the difference between
the market value of the Shares underlying the Option on the exercise date and the exercise price
paid for such Shares underlying the Option), with respect to any portion of the Option that has
already been exercised at any time within three years prior to the Triggering Conduct (the
“Look-Back Period”), less $1.00. If Grantee engages only in Competitor Triggering Conduct, then
the Look-Back Period shall be shortened to exclude any period more than one year prior to Grantee’s
termination of employment with the Cardinal Group, but including any period between the time of
Grantee’s termination and engagement in Competitor Triggering Conduct. Grantee may be released
from Grantee’s obligations under this paragraph 6 only if the Committee (or its duly appointed
designee) determines, in writing and in its sole discretion, that such action is in the best
interests of the Company. Nothing in this paragraph 6 constitutes a so-called “noncompete”
covenant. This paragraph 6 does, however, prohibit certain conduct while Grantee is associated
with the Cardinal Group and thereafter and does provide for the forfeiture or repayment of the
benefits granted by this agreement under certain circumstances, including, but not limited to,
Grantee’s acceptance of employment with a Competitor. Grantee agrees to provide the Company with
at least 10 days written notice prior to directly or indirectly accepting employment with or
serving as a consultant or advisor or in any other capacity to a Competitor, and further agrees to
inform any such new employer, before accepting employment, of the terms of this paragraph 6 and
Grantee’s continuing obligations contained herein. No provisions of this agreement shall diminish,
negate or otherwise impact any separate noncompete or other agreement to which Grantee may be a
party, including, but not limited to, any of the Certificates of Compliance with Company Policies
and/or the Certificates of Compliance with Company Business Ethics Policies; provided, however,
that to the extent that any provisions
contained in any other agreement are inconsistent in any manner with the restrictions and covenants
of Grantee contained in this agreement, the provisions of this agreement shall take precedence and
such other inconsistent provisions shall be null and void. Grantee acknowledges and agrees that
the restrictions


5









 






contained in this agreement are being made for the benefit of the Company in
consideration of Grantee’s receipt of the Option, in consideration of employment, in consideration
of exposing Grantee to the Company’s business operations and confidential information, and for
other good and valuable consideration, the adequacy of which consideration is hereby expressly
confirmed. Grantee further acknowledges that the receipt of the Option and execution of this
agreement are voluntary actions on the part of Grantee and that the Company is unwilling to provide
the Option to Grantee without including the restrictions and covenants of Grantee contained in this
agreement. Further, the parties agree and acknowledge that the provisions contained in paragraphs
5 and 6 are ancillary to, or part of, an otherwise enforceable agreement at the time the agreement
is made.



7. Right of Set-Off. By accepting this Option, Grantee consents to a deduction from, and
set-off against, any amounts owed to Grantee by any member of the Cardinal Group from time to time
(including, but not limited to, amounts owed to Grantee as wages, severance payments or other
fringe benefits) to the extent of the amounts owed to the Cardinal Group by Grantee under this
agreement.



8. Governing Law/Venue. This agreement shall be governed by the laws of the State of Ohio,
without regard to principles of conflicts of law, except to the extent superceded by the laws of
the United States of America. The parties agree and acknowledge that the laws of the State of Ohio
bear a substantial relationship to the parties and/or this agreement and that the Option and
benefits granted herein would not be granted without the governance of this agreement by the laws
of the State of Ohio. In addition, all legal actions or proceedings relating to this agreement
shall be brought in state or federal courts located in Franklin County, Ohio and the parties
executing this agreement hereby consent to the personal jurisdiction of such courts. Grantee
acknowledges that the covenants contained in paragraphs 5 and 6 of this agreement are reasonable in
nature, are fundamental for the protection of the Company’s legitimate business and proprietary
interests, and do not adversely affect Grantee’s ability to earn a living in any capacity that does
not violate such covenants. The parties further agree that in the event of any violation by
Grantee of any such covenants, the Company will suffer immediate and irreparable injury for which
there is no adequate remedy at law. In the event of any violation or attempted violations of the
restrictions and covenants of Grantee contained in this agreement, the Cardinal Group shall be
entitled to specific performance and injunctive relief or other equitable relief, including the
issuance ex parte of a temporary restraining order, without any showing of irreparable harm or
damage, such irreparable harm being acknowledged and admitted by Grantee, and Grantee hereby waives
any requirement for the securing or posting of any bond in connection with such remedy, without
prejudice to the rights and remedies afforded the Cardinal Group hereunder or by law. In the event
that it becomes necessary for the Cardinal Group to institute legal proceedings under this
agreement, Grantee shall be responsible to the Company for all
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


6









 






intended by such provision, without invalidating or
rendering unenforceable the remaining provisions of this agreement.



9. Action by the Committee. The parties agree that the interpretation of this agreement
shall rest exclusively and completely within the good faith province and discretion of the
Committee. The parties agree to be bound by the decisions of the Committee with regard to the
interpretation of this agreement and with regard to any and all matters set forth in this
agreement. The Committee may delegate its functions under this agreement to an officer of the
Cardinal Group designated by the Committee (hereinafter the “designee”). In fulfilling its
responsibilities hereunder, the Committee or its designee may rely upon documents, written
statements of the parties or such other material as the Committee or its designee deems
appropriate. The parties agree that there is no right to be heard or to appear before the
Committee or its designee and that any decision of the Committee or its designee relating to this
agreement, including without limitation whether particular conduct constitutes Triggering Conduct
or Competitor Triggering Conduct, shall be final and binding unless such decision is arbitrary and
capricious.



10. Prompt Acceptance of Agreement. The Option grant evidenced by this agreement shall, at
the discretion of the Committee, be forfeited if this agreement is not executed by Grantee and
returned to the Company within 90 days of the Grant Date set forth on the first page of this
agreement.




7









 








ACCEPTANCE OF AGREEMENT



Grantee hereby: (a) acknowledges receiving a copy of the Plan, which has either been previously
delivered or is provided with this agreement, and represents that he or she is familiar with and
understands all provisions of the Plan and this agreement; and (b) voluntarily and knowingly
accepts this agreement and the Option granted to him or her under this agreement subject to all
provisions of the Plan and this agreement. Grantee further acknowledges receiving a copy of the
Company’s most recent Annual Report on Form 10-K and other communications routinely distributed to
the Company’s shareholders and a copy of the Plan Description dated November 17, 2003 pertaining to
the Plan.




	 	 	 	 	 
	 

	 	 

Signature
	 	 
	 
	 	 	 	 
	 

	 	 

Print Name
	 	 
	 
	 	 	 	 
	 

	 	 

Grantee’s Social Security Number
	 	 
	 
	 	 	 	 
	 

	 	 

Date
	 	 







8