<PAGE> 1
As filed with the Securities and Exchange Commission on March 7, 1994
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------------
CARDINAL HEALTH, INC.
(formerly known as Cardinal Distribution, Inc.)
(Exact name of registrant as specified in its charter)
Ohio 31-0958666
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
655 Metro Place South, Suite 925, Dublin, Ohio 43017
(Address of Principal Executive Offices) (Zip Code)
-----------------
CARDINAL HEALTH, INC.
CARDINAL EXCHANGE OPTIONS
(Full title of the plan)
George H. Bennett, Jr.,
Executive Vice President and General Counsel
Cardinal Health, Inc.
655 Metro Place South, Suite 925
Dublin, Ohio 43017
(Name and address of agent for service)
(614) 761-8700
(Telephone number, including area code, of agent for service)
-----------------
<TABLE>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
<CAPTION>
Title of Amount Proposed Proposed Amount of
securities to to be maximum offering maximum aggregate registration
be registered registered(1) price per share(2) offering price(3) fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares,
without par
value 1,377,000 $1.999 $2,752,623.00 $950.00
=========================================================================================================================
<FN>
(1) Also includes an indeterminable number of additional shares that may
become issuable pursuant to the anti-dilution provisions of the Plan.
(2) Rounded average of the per share exercise prices of the options.
(3) Calculated in accordance with Rule 457(h)(1) based on the aggregate
exercise prices of the options.
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (c) below are incorporated by
reference in the registration statement. All documents filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") subsequent to the date of the filing of this
registration statement and prior to the filing of a post-effective amendment
that indicates that all securities registered hereunder have been sold, or that
de-registers all securities then remaining unsold, shall be deemed to be
incorporated by reference in the registration statement and to be a part hereof
from the date of the filing of such documents.
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1993, as amended;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the Annual Report on Form 10-K
referenced above; and
(c) The description of the Company's Common Shares contained in
the Company's Registration Statement on Form 8-A dated June 7, 1984,
pursuant to Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Shares offered hereby has been passed upon
for the Company by Baker & Hostetler, Cleveland, Ohio. Michael E. Moritz, a
director and Secretary of the Company, is a partner of Baker & Hostetler and,
as of February 28, 1994, was the beneficial owner of 457,229 Common Shares.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 1701.13(E) of the Ohio Revised Code sets forth conditions and
limitations governing the indemnification of officers, directors, and other
persons.
Article 6 of Cardinal's Code of Regulations ("Code of Regulations"),
as amended and restated contains certain indemnifications provisions adopted
pursuant to authority contained in Section 1701.13(E) of the Ohio Revised Code.
Cardinal's Code of Regulations provides for the indemnification of its
officers, directors, employees, and agents against all expenses with respect to
any judgments, fines, and amounts paid in settlement, or with respect to any
threatened, pending, or completed action, suit, or proceeding to which they
were or are parties or are threatened to be made parties by reason of acting in
such capacities, provided that it is determined, either by a majority vote of a
quorum of disinterested directors of Cardinal or the shareholders of Cardinal
or otherwise as provided in Section 1701.13(E) of the Ohio Revised Code, that
(a) they acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interest of Cardinal; (b) in any action, suit, or
proceeding by or in the right of Cardinal, they were not, and have not been
adjudicated to have been, negligent or guilty of misconduct in the performance
of their duties to Cardinal; and (c) with respect to any criminal action or
proceeding, that they had no reasonable cause to believe that their conduct was
unlawful. Section 1701.13(E) provides that to the extent a director, officer,
employee, or agent has been successful on the merits or otherwise in defense of
any such action, suit, or proceeding, he shall be indemnified against expenses
reasonably incurred in connection therewith. At present there are no material
claims, actions, suits, or proceedings pending where indemnification would be
II-1
<PAGE> 3
required under these provisions, and Cardinal does not know of any such
threatened claims, actions, suits, or proceedings which may result in a request
for such indemnification.
Cardinal has entered into indemnification contracts with each of its
directors and executive officers. These contracts generally: (i) confirm the
existing indemnity provided to them under Cardinal's Code of Regulations and
assure that this indemnity will continue to be provided; (ii) provide that if
Cardinal does not maintain directors' and officers' liability insurance,
Cardinal will, in effect, become a self-insurer of the coverage; and (iii)
provide that, in addition, the directors and officers shall be indemnified to
the fullest extent permitted by law against all expenses (including legal
fees), judgments, fines, and settlement amounts paid or incurred by them in any
action or proceeding, including any action by or in the right of Cardinal, on
account of their service as a director, officer, employee, or agent of Cardinal
or at the request of Cardinal as a director, officer, employee, or agent of
another corporation or enterprise. Coverage under the contracts is excluded:
(A) on account of conduct which is finally adjudged to be knowingly fraudulent,
deliberately dishonest, or willful misconduct; or (B) if a final court of
adjudication shall determine that such indemnification is not lawful; or (C) in
respect of any suit in which judgment is rendered for violations of Section
16(b) of the Securities and Exchange Act of 1934, as amended, or similar
provisions of any federal, state, or local statutory law; or (D) on account of
any remuneration paid which is finally adjudged to have been in violation of
law; or (E) as to officers who are not directors, with respect to any act or
omission which is finally adjudged to have been a violation, other than in good
faith, of Cardinal's Standards of Business Conduct of which the officer then
most recently has received written notice. The indemnification agreements are
applicable to claims asserted after their effective date, whether arising from
acts or omissions occurring before or after their effective date, and
associated legal expenses.
<TABLE>
ITEM 8. EXHIBITS.
<CAPTION>
Exhibit Number Description of Exhibit
- -------------- ----------------------
<S> <C>
4 Forms of Cardinal Exchange Option Agreements
5 Opinion of Baker & Hostetler as to legality of the Common Shares being registered
23(a) Consent of Deloitte & Touche
23(b) Consent of Arthur Andersen & Co.
23(c) Consent of Baker & Hostetler (included in Opinion filed as Exhibit 5 hereto)
</TABLE>
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement: (i) to include any prospectus required by Section
10(a)(3) of the Securities Act; (ii) to reflect in the
prospectus any facts or events arising after the effective
date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement; and (iii)
to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided, however, that clauses (i)
and (ii) do not apply if the information
II-2
<PAGE> 4
required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described under Item 6 above or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dublin, State of Ohio, on the 7th day of
March, 1994.
CARDINAL HEALTH, INC.
By: /s/ Robert D. Walter
------------------------------------
Robert D. Walter, Chairman and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert D. Walter, George H. Bennett,
Jr., and Michael E. Moritz, and each of them, severally, as his
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place, and stead, in any and all capacities, to sign
any and all pre- or post-effective amendments to this Registration Statement,
and to file the same with all exhibits hereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the 7th day of March, 1994.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/Robert D. Walter Chairman and Chief Executive
- ----------------------------------- Officer (principal executive officer)
Robert D. Walter
/s/David Bearman Executive Vice President and Chief
- ----------------------------------- Financial Officer (principal financial
David Bearman officer and principal accounting officer)
/s/Mitchell J. Blutt, M.D. Director
- -----------------------------------
Mitchell J. Blutt, M.D.
/s/John F. Finn Director
- -----------------------------------
John F. Finn
/s/Robert L. Gerbig Director
- -----------------------------------
Robert L. Gerbig
/s/ Michael S. Gross Director
- -----------------------------------
Michael S. Gross
</TABLE>
II-4
<PAGE> 6
<TABLE>
<S> <C>
/s/John F. Havens Director
- -----------------------------------
John F. Havens
/s/James L. Heskett Director
- -----------------------------------
James L. Heskett
/s/John C. Kane Director
- -----------------------------------
John C. Kane
/s/George R. Manser Director
- -----------------------------------
George R. Manser
/s/John B. McCoy Director
- -----------------------------------
John B. McCoy
/s/Michael E. Moritz Director
- -----------------------------------
Michael E. Moritz
/s/Jerry E. Robertson Director
- -----------------------------------
Jerry E. Robertson
/s/L. Jack Van Fossen Director
- -----------------------------------
L. Jack Van Fossen
/s/Melburne G. Whitmire Director
- -----------------------------------
Melburne G. Whitmire
</TABLE>
II-5
<PAGE> 7
<TABLE>
EXHIBIT INDEX
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------ -------------------
<S> <C>
4 Forms of Cardinal Exchange Option Agreements
5 Opinion of Baker & Hostetler as to legality of
the Common Shares being registered
23(a) Consent of Deloitte & Touche
23(b) Consent of Arthur Andersen & Co.
23(c) Consent of Baker & Hostetler (included in Opinion
filed as Exhibit 5 hereto)
</TABLE>
<PAGE> 1
Exhibit 4
CARDINAL HEALTH, INC.
AMENDED AND RESTATED
STOCK OPTION AGREEMENT
W I T N E S S E T H:
WHEREAS, Melco Managers ("Melco") has granted to the undersigned Optionee
("Optionee") an option to purchase Whitmire Common Shares pursuant to a
Nonstatutory Stock Option Agreement referred to below; and
WHEREAS, Cardinal Health, Inc. (fka Cardinal Distribution, Inc.; herein,
"Cardinal") and Whitmire Distribution Corporation ("Whitmire") have effected an
Agreement and Plan of Reorganization, dated as of October 11, 1993 (the "Merger
Agreement"), which Merger Agreement provides, among other things, that at the
Effective Time (as defined therein) each unexpired and unexercised option to
purchase stock of Whitmire which has been granted by Melco to a current or
former officer or employee of Whitmire (a "Whitmire Option") is to be
automatically converted into an option (a "Cardinal Exchange Option") to
purchase that number of shares of Cardinal Class A Common Shares (as defined in
the Merger Agreement) equal to the number of Whitmire Common Shares issuable
immediately prior to the Effective Time upon exercise of the Whitmire Option
(without regard to actual restrictions upon exercisability) multiplied by the
Exchange Ratio at a per share exercise price equal to the exercise price which
existed under the corresponding Whitmire Option divided by the Exchange Ratio;
WHEREAS, Cardinal, Melco and Optionee intend this option to be a Cardinal
Exchange Option as described in the Merger Agreement;
NOW, THEREFORE, the Nonstatutory Stock Option Agreement identified below
heretofore granted by Melco to Optionee is hereby amended and restated (the
"Amendment and Restatement") as follows:
1. EXCHANGE OF OPTION.
On the terms and subject to the conditions stated in this Amendment and
Restatement, Melco hereby exchanges with the Optionee an option (the "Option")
to purchase up to that number of Cardinal Class A Common Shares specified under
(A) on the signature page hereof (the "Shares") for a purchase price per Share
specified under (B) on the signature page hereof (as adjusted from time to time
in accordance with the terms of this Amendment and Restatement, the "Exercise
Price") in exchange for the Whitmire Option identified under (C) on the
signature page hereof, a copy of which is appended hereto.
MELCO -1-
<PAGE> 2
2. NO TRANSFER OR ASSIGNMENT OF OPTION.
Except as otherwise provided in this Amendment and Restatement, the Option and
the rights and privileges conferred hereby shall not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise)
and shall not be subject to sale under execution, attachment or similar
process. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of the Option, or of any right or privilege conferred hereby,
contrary to the provisions hereof, or upon any attempted sale under any
execution, attachment or similar process upon the rights and privileges
conferred hereby, the Option shall automatically expire and the rights and
privileges conferred hereby shall immediately become null and void.
3. RIGHT TO EXERCISE.
On the terms and subject to the conditions set forth in this Amendment and
Restatement, the Optionee shall have the right to exercise the Option at any
time or from time to time after the date hereof and prior to the Expiration
Date for a number of Shares equal to (i) the total number of Shares minus (ii)
the aggregate number of Shares for which the Option was theretofore exercised.
4. EXERCISE PROCEDURES.
(a) NOTICE OF EXERCISE. The Optionee or the Optionee's representative may
exercise this Option by giving written notice to Melco pursuant to Section
9(c). The notice shall specify the election to exercise the Option and the
number of Shares for which it is being exercised. In the event that this
Option is being exercised by the representative of the Optionee, the notice
shall be accompanied by proof (satisfactory to Melco) of the representative's
right to exercise this Option. The notice shall be signed by the Optionee.
The Optionee or his representative shall deliver to Melco at the time of giving
the notice payment of the Purchase Price in accordance with Section 5.
(b) TRANSFER OF SHARES. Upon the exercise of the Option, Melco agrees to
transfer to the Optionee as soon as practicable following payment of the
Purchase Price a certificate or certificates for the number of Shares with
respect to which the Option is exercised, registered in the name of the person
exercising this Option (or in the names of such person and his or her spouse as
community property or as joint tenants with right of survivorship). Melco
shall cause such certificate or certificates to be delivered to or upon the
order of the person exercising this Option.
5. PAYMENT FOR STOCK.
The entire Purchase Price shall be paid in lawful money of the United States of
America by certified or cashier's check.
MELCO -2-
<PAGE> 3
6. EXPIRATION.
The Option shall expire at 12 o'clock midnight California time on the 548th
calendar day following the Pooling Press Release (as defined in the Merger
Agreement). All or part of this Option may be exercised at any time before its
expiration under the preceding sentence by the executors or administrators of
the Optionee's estate or by any person who has acquired this Option directly
from the Optionee by bequest, beneficiary designation or inheritance.
7. RESTRICTIONS ON TRANSFER OF SHARES.
(a) INVESTMENT INTENT AT GRANT. The Optionee represents and agrees that
the Shares to be acquired upon exercising the Option will be acquired for the
Optionee's own account for investment and not with a view to or for sale in
connection with any distribution thereof in violation of the Securities Act.
(b) INVESTMENT INTENT AT EXERCISE. In the event that the sale of Shares
under this Amendment and Restatement is not registered under the Securities Act
but an exemption is available which requires an investment representation, the
Optionee shall represent and agree at the time of exercise that the Shares
being acquired upon exercising the Option are being acquired for investment and
not with a view to the sale or distribution thereof in violation of the
Securities Act.
8. SHARES AND ADJUSTMENTS.
(a) GENERAL. In the event of any stock dividend, stock split or share
combination, a proportionate adjustment will be made in (i) the number of
Shares, and (ii) the Exercise Price, in each case to prevent dilution or
enlargement of the rights under this Amendment and Restatement.
(b) ORGANIC CHANGE. If an Organic Change occurs, in lieu of the Shares
issuable upon exercise of the Option, the Option will thereafter be exercisable
for such shares of stock, securities or assets (including cash) as may be
issued or payable with respect to or in exchange for the number of Shares
immediately theretofore acquirable and receivable upon exercise of the Option
had such Organic Change not taken place.
(c) RESERVATION OF RIGHTS. Except as expressly provided in this Section
8, the Optionee shall have no rights by reason of (i) any subdivision or
consolidation of shares of stock of any class, (ii) the payment of any dividend
or (iii) any other increase or decrease in the number of shares of stock of any
class. Any issue by Cardinal of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of the Shares subject to the Option. Except as expressly
provided herein, this Option shall not affect in any way the right or power of
Cardinal
MELCO -3-
<PAGE> 4
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure, to merge or consolidate or to dissolve,
liquidate, sell or transfer all or any part of its business or assets.
9. MISCELLANEOUS PROVISIONS.
(a) WITHHOLDING TAXES. In the event that Melco determines that it is
required to withhold foreign, federal, state or local tax as a result of the
exercise of the Option, the Optionee, as a condition to the exercise of the
Option, shall make arrangements reasonably satisfactory to Melco to enable
Melco to satisfy all withholding requirements.
(b) RIGHTS AS A STOCKHOLDER. The Optionee shall have no rights as a
stockholder of Cardinal with respect to any Shares subject to the Option until
such Shares have been issued in the name of the Optionee. Nothing contained in
this Subsection (b) will impair any contract rights which the Optionee may
hold.
(c) NOTICE. Any notice required by the terms of this Amendment and
Restatement shall be given in writing and shall be deemed effective upon
personal delivery or upon deposit with the United States Postal Service, by
registered or certified mail with postage and fees prepaid and addressed to the
party entitled to such notice at the address shown on the signature page to
this Amendment and Restatement, or at such other address as such party may
designate by 10 days' advance written notice to the other party to this
Amendment and Restatement.
(d) CHOICE OF LAW. This Amendment and Restatement shall be governed by,
and construed in accordance with, the laws of the State of Delaware, as such
laws are applied to contracts entered into and performed in such State.
(e) NO STRICT CONSTRUCTION. The language of this Amendment and
Restatement will be deemed to be the language chosen by the parties hereto to
express their mutual intent and no rule of strict construction will be applied
against any person.
(F) MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL
SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
(g) LEGEND. All certificates evidencing Shares acquired under this
Amendment and Restatement in an unregistered transaction shall bear the
following restrictive legend (and such other
MELCO -4-
<PAGE> 5
restrictive legends as are required or deemed advisable under the provisions of
any applicable law):
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER
SUCH ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO MELCO AND ITS
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED."
If, in the opinion of Melco and its counsel, any legend placed on a stock
certificate representing Shares sold under this Agreement is no longer
required, the holder of such certificate shall be entitled to exchange such
certificate for a certificate representing the same number of Shares but
lacking such legend, provided, however, that upon the effectiveness of the
registration provided for in Section 11 hereof, the legend shall be so removed.
(h) NO EMPLOYMENT RIGHTS. Nothing in this Amendment and Restatement shall
be construed as giving the Optionee the right to be retained as an employee of
Whitmire, Cardinal or any affiliate of either.
(i) ADMINISTRATION. Any determination by Melco in connection with any of
the matters set forth in this Amendment and Restatement shall be conclusive and
binding on the Optionee and all other persons.
10. DEFINITIONS.
"EXCHANGE RATIO" shall have the meaning ascribed to it in the Merger Agreement.
"CARDINAL CLASS A COMMON SHARES" shall have the meaning ascribed to it in the
Merger Agreement.
"ORGANIC CHANGE" means any recapitalization, reorganization, reclassification,
consolidation, merger, sale of all or substantially all of Cardinal's assets to
another Person or other transaction which is effected in such a way that
holders of Cardinal Class A Common Shares are entitled to receive (either
directly or upon subsequent liquidation) stock, securities or assets with
respect to or in exchange for such Cardinal Class A Common Shares.
"PERSON" shall be construed broadly and shall include, without limitation, an
individual, a partnership, a corporation, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
"PURCHASE PRICE" shall mean the Exercise Price multiplied by the number of
shares with respect to which this Option is being exercised.
MELCO -5-
<PAGE> 6
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SHARE" shall mean one Cardinal Class A Common Share, as adjusted in accordance
with Section 8 (if applicable).
"TRANSFER" shall be construed broadly and shall include any transfer of any
Cardinal Class A Common Share, including without limitation, by way of
issuance, sale, participation, pledge, gift, bequeath, intestate transfer,
distribution, liquidation, merger or consolidation.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Merger Agreement.
11. REGISTRATION. Cardinal shall cause to be filed with the Securities and
Exchange Commission within six months of the Closing Date (as defined in the
Merger Agreement), and shall use all reasonable efforts to have declared
effective, a registration statement on Form S-8 or other appropriate form under
the Securities Act of 1933, as amended (the "Securities Act"), to register the
Shares and shall use all reasonable efforts to cause such registration
statement to remain effective until the exercise or expiration of this Option.
12. GUARANTEE. Cardinal hereby irrevocably, absolutely and unconditionally
guarantees the performance by Melco of all obligations of Melco to the Optionee
under this Agreement. Effective upon the earlier of any liquidation or
dissolution of Melco or the merger of Melco with and into Whitmire or Cardinal,
Cardinal's obligations hereunder shall be as principal and not as guarantor and
each reference to Melco herein shall become a
[INTENTIONALLY LEFT BLANK)
MELCO -6-
<PAGE> 7
reference to Cardinal for all purposes herein.
IN WITNESS WHEREOF, Melco and Cardinal have caused this Amendment and
Restatement to be executed on their behalf by their officers duly authorized,
and the Optionee has personally executed this Amendment and Restatement.
<TABLE>
<S> <C>
OPTIONEE MELCO MANAGERS
_______________________ By _________________________
(signature)
Address:
[Type Name]
81 Blue Ravine Road
Optionee's Address: Folsom, California 95630
Attn: Secretary
_______________________
CARDINAL HEALTH, INC.
_______________________
By _________________________
Address:
655 Metro Place South, Ste. 925
Dublin, Ohio 43017
Attn: General Counsel
(A) Number of Class A
Common Shares:
(B) Exercise Price:
(C) Whitmire Option:
Number of Shares:
Exercise Price:
</TABLE>
MELCO -7-
<PAGE> 8
CARDINAL HEALTH, INC.
AMENDED AND RESTATED
NONSTATUTORY STOCK OPTION AGREEMENT
W I T N E S S E T H:
WHEREAS, Cardinal Health, Inc. (fka Cardinal Distribution, Inc.; herein,
"Cardinal") and Whitmire Distribution Corporation ("Whitmire") have effected an
Agreement and Plan of Reorganization, dated as of October 11, 1993 (the "Merger
Agreement"), which Merger Agreement provides, among other things, that at the
Effective Time (as defined therein) each unexpired and unexercised option
heretofore granted to the undersigned Optionee by Whitmire (a "Whitmire
Option") is to be automatically converted into an option (a "Cardinal Exchange
Option") to purchase that number of Cardinal Class A Common Shares (as defined
in the Merger Agreement) equal to the number of Whitmire Common Shares issuable
immediately prior to the Effective Time upon exercise of the Whitmire Option
(without regard to actual restrictions on exercisability) multiplied by the
Exchange Ratio at a per share exercise price equal to the exercise price which
existed under the corresponding Whitmire Option divided by the Exchange Ratio;
and
WHEREAS, Cardinal, Whitmire and Optionee intend this option to be a Cardinal
Exchange Option as described in the Merger Agreement;
NOW, THEREFORE, the Nonstatutory Stock Option Agreement identified below
heretofore granted by Whitmire to Optionee is hereby amended and restated (the
"Amendment and Restatement") as follows:
SECTION 1. EXCHANGE OF OPTION.
On the terms and subject to the conditions stated in this Amendment and
Restatement, Cardinal hereby exchanges with the Optionee an option (the
"Option") to purchase up to that number of Cardinal Class A Common Shares
specified under (A) on the signature page hereof (the "Shares") for a purchase
price per Share specified under (B) on the signature page hereof (as adjusted
from time to time in accordance with the terms of this Amendment and
Restatement, the "Exercise Price") in exchange for the Whitmire Option
identified under (C) on the signature page hereof, a copy of which is appended
hereto.
SECTION 2. NO TRANSFER OR ASSIGNMENT OF OPTION.
Except as otherwise provided in this Amendment and Restatement, the Option and
the rights and privileges conferred hereby shall not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise)
and shall not be subject to sale under execution, attachment or similar
process. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of the Option, or of any right or privilege conferred hereby,
contrary to the provisions hereof, or upon any attempted sale under any
execution, attachment or similar process upon the rights and
88WV -1-
<PAGE> 9
privileges conferred hereby, the Option shall automatically expire and the
rights and privileges conferred hereby shall immediately become null and void.
SECTION 3. RIGHT TO EXERCISE.
On the terms and subject to the conditions set forth in this Amendment and
Restatement, the Optionee shall have the right to exercise the Option at any
time or from time to time after the date hereof and prior to the Expiration
Date initially for the percentage of the aggregate number of Shares referred to
in Section 1 specified under (D) on the signature page hereof and thereafter
for the applicable percentage of the aggregate number of Shares referred to in
Section 1 as provided under (E) on the signature page hereof.
SECTION 4. EXERCISE PROCEDURES.
(a) NOTICE OF EXERCISE. The Optionee or the Optionee's representative may
exercise this Option by giving written notice to Cardinal pursuant to Section
9(d). The notice shall specify the election to exercise the Option and the
number of Shares for which it is being exercised. In the event that this
Option is being exercised by the representative of the Optionee, the notice
shall be accompanied by proof (satisfactory to Cardinal) of the
representative's right to exercise this Option. The notice shall be signed by
the Optionee. The Optionee or his representative shall deliver to Cardinal at
the time of giving the notice payment of the Purchase Price in accordance with
Section 5.
(b) ISSUANCE OF SHARES. Upon the exercise of the Option, Cardinal agrees to
issue to the Optionee as soon as practicable following payment of the Purchase
Price a certificate or certificates for the number of Shares with respect to
which the Option is exercised, registered in the name of the person exercising
this Option (or in the names of such person and his or her spouse as community
property or as joint tenants with right of survivorship). Cardinal shall cause
such certificate or certificates to be delivered to or upon the order of the
person exercising this Option.
SECTION 5. PAYMENT FOR STOCK.
The entire Purchase Price may be paid in lawful money of the United States of
America. Alternatively, to the extent that applicable law permits, all or part
of the Purchase Price may be paid by the surrender of Shares in good form for
transfer. Such Shares must have been owned for more than twelve (12) months by
the Optionee or the Optionee's representative and must have a fair market value
on the date of exercise of this Option which, together with any amount paid in
lawful money, is equal to the Purchase Price.
SECTION 6. TERM AND EXPIRATION.
(a) BASIC TERM. This Option shall in any event expire on the date 10 years
after the Date of Grant.
88WV -2-
<PAGE> 10
(b) TERMINATION OF SERVICE (EXCEPT BY DEATH). If the Optionee's service as an
Employee terminates for any reason other than death, then this Option shall
expire on the earliest of the following occasions:
(i) the expiration date determined pursuant to Subsection (a)
above;
(ii) the date forty five (45) days after the termination of the
Optionee's service as an Employee for any reason other than Total
and Permanent Disability;
(iii) the date six (6) months after the termination of the
Optionee's service as an Employee by reason of Total and
Permanent Disability.
The Optionee may exercise all or part of this Option at any time before its
expiration under the preceding sentence, but only to the extent that this
Option had become exercisable before the Optionee's service terminated. The
balance of this Option shall lapse when the Optionee's service as an Employee
terminates. In the event that the Optionee dies after the termination of
service but before the expira-tion of this Option, all or part of this Option
may be exercised (prior to expiration) by the executors or administrators of
the Optionee's estate or by any person who has acquired this Option directly
from the Optionee by bequest, beneficiary designation or inheritance, but only
to the extent that this Option had become exercisable before the Optionee's
service terminated.
(c) DEATH OF OPTIONEE. If the Optionee dies as an Employee, then this Option
shall become fully exercisable upon the Optionee's death, and this Option shall
expire on the earlier of the following dates:
(i) the expiration date determined pursuant to Subsection (a)
above; or
(ii) the date six (6) months after the Optionee's death.
All or part of this Option may be exercised at any time before its expiration
under the preceding sentence by the executors or admini-strators of the
Optionee's estate or by any person who has acquired this Option directly from
the Optionee by bequest, beneficiary designation or inheritance.
(d) LEAVES OF ABSENCE. For purposes of this Section 6, the Employee
relationship shall be deemed to continue during any period when the Optionee is
on military leave, sick leave or other bona fide leave of absence.
SECTION 7. RESTRICTIONS ON TRANSFER OF SHARES.
(a) INVESTMENT INTENT AT GRANT. The Optionee represents and agrees that the
Shares to be acquired upon exercising the Option will be acquired for the
Optionee's own account for investment and not with a view to or for sale in
connection with any distribution thereof in violation of the Securities Act.
88WV -3-
<PAGE> 11
(b) INVESTMENT INTENT AT EXERCISE. In the event that the sale of Shares under
this Amendment and Restatement is not registered under the Securities Act but
an exemption is available which requires an investment representation, the
Optionee shall represent and agree at the time of exercise that the Shares
being acquired upon exercising the Option are being acquired for investment and
not with a view to the sale or distribution thereof in violation of the
Securities Act.
(c) LEGEND. All certificates evidencing Shares acquired under this Amendment
and Restatement in an unregistered transaction shall bear the following
restrictive legend (and such other restrictive legends as are required or
deemed advisable under the provisions of any applicable law):
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF
COUNSEL, SATISFACTORY TO CARDINAL AND ITS COUNSEL, THAT SUCH REGISTRATION IS
NOT REQUIRED."
(d) REMOVAL OF LEGENDS. If, in the opinion of Cardinal and its counsel, any
legend placed on a stock certificate representing Shares sold under this
Amendment and Restatement is no longer required, the holder of such certificate
shall be entitled to exchange such certi-ficate for a certificate representing
the same number of Shares but lacking such legend; provided, however, that upon
the effectiveness of the registration provided in Section 10 hereof, the legend
shall be so removed.
SECTION 8. SHARES AND ADJUSTMENTS.
(a) GENERAL. In the event of a subdivision of the outstanding Shares, a
declaration of a dividend payable in Shares, a declaration of a dividend
payable in a form other than Shares in an amount that has a material effect on
the value of Shares, a combination or consolidation of the outstanding Shares
(by reclassification or otherwise) into a lesser number of Shares, a
recapitalization or a similar occurrence, an appropriate adjustment shall be
made in one or both of (i) the number of Shares covered by this Option or (ii)
the Exercise Price.
(b) MERGER; REORGANIZATION. In the event that Cardinal is a party to a merger
or other reorganization, this Option shall be subject to the agreement of
merger or reorganization. Such agreement may provide (i) for the assumption of
this Option by the surviving corporation or its parent, (ii) for its
continuation by Cardinal, if Cardinal is a surviving corporation, (iii) for
payment of a cash settlement equal to the difference between the amount to be
paid for one Share under such agreement and the Exercise Price or (iv) for the
acceleration of its exercisability followed by its cancellation if not
exercised, in all cases other than clause (iii) without the Optionee's consent.
(The Optionee's consent shall be required for a cash settlement.) Any
cancellation shall not occur earlier than 30 days after such acceleration is
effective and the Optionee has been notified of such acceleration.
88WV -4-
<PAGE> 12
(c) RESERVATION OF RIGHTS. Except as provided in this Section 8, the Optionee
shall have no rights by reason of (i) any subdivision or consolidation of
shares of stock of any class, (ii) the payment of any dividend or (iii) any
other increase or decrease in the number of shares of stock of any class. Any
issue by Cardinal of shares of stock of any class, or securities convertible
into shares of stock of any class, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number or Exercise Price of
the Shares subject to this Option. Except as expressly provided herein, the
grant of this Option shall not affect in any way the right or power of Cardinal
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure, to merge or consolidate or to dissolve,
liquidate, sell or transfer all or any part of its business or assets.
SECTION 9. MISCELLANEOUS PROVISIONS.
(a) WITHHOLDING TAXES. In the event that Cardinal determines that it is
required to withhold foreign, federal, state or local tax as a result of the
exercise of this Option, the Optionee, as a condition to the exercise of this
Option, shall make arrangements satisfactory to Cardinal to enable it to
satisfy all withholding requirements.
(b) RIGHTS AS A STOCKHOLDER. Neither the Optionee nor the Optionee's
representative shall have any rights as a stockholder with respect to any
Shares subject to this Option until such Shares have been issued in the name of
the Optionee or the Optionee's representative.
(c) NO EMPLOYMENT RIGHTS. Nothing in this Amendment and Restatement shall be
construed as giving the Optionee the right to be retained as an Employee.
Except as may be provided in any written employment agreement between Optionee
and Whitmire or Cardinal, Whitmire and Cardinal reserve the right to terminate
the Optionee's service at any time, with or without cause.
(d) NOTICE. Any notice required by the terms of this Amendment and
Restatement shall be given in writing and shall be deemed effective upon
personal delivery or upon deposit with the United States Postal Service, by
registered or certified mail with postage and fees prepaid and addressed to the
party entitled to such notice at the address shown below such party's signature
on this Amendment and Restatement, or at such other address as such party may
designate by ten (10) days' advance written notice to the other party to this
Amendment and Restatement.
(e) ENTIRE AGREEMENT. This Amendment and Restatement constitutes the entire
contract between the parties hereto with regard to the subject matter hereof.
(f) CHOICE OF LAW. This Amendment and Restatement shall be governed by, and
construed in accordance with, the laws of the State of California, as such laws
are applied to contracts entered into and performed in such State.
88WV -5-
<PAGE> 13
SECTION 10. REGISTRATION. Cardinal shall file with the Securities and
Exchange Commission within six (6) months of the Closing Date (as defined in
the Merger Agreement), and shall use all reasonable efforts to have declared
effective, a registration statement on Form S-8 or other appropriate form under
the Securities Act of 1933, as amended (the "Securities Act"), to register the
Shares and shall use all reasonable efforts to cause such registration
statement to remain effective until the exercise or expiration of this Option.
SECTION 11. DEFINITIONS.
(a) "DATE OF GRANT" shall mean the date on which the Whitmire Option for which
this Option has been exchanged was granted, as specified under (C) on the
signature page hereof.
(b) "EMPLOYEE" shall mean any individual who is a common-law employee of
Cardinal, Whitmire or any entity controlling, controlled by, or under the
common control of either.
(c) "EXERCISE PRICE" shall mean the amount for which one Share may be
purchased upon exercise of this Option, as specified in Section 1.
(d) "PURCHASE PRICE" shall mean the Exercise Price multiplied by the number of
Shares with respect to which this Option is being exercised.
(e) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
(f) "SHARE" shall mean one Cardinal Class A Common Share (as defined in the
Merger Agreement), as adjusted in accordance with Section 8 (if applicable).
(g) "TOTAL AND PERMANENT DISABILITY" shall mean that the Optionee is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted, or can be expected to last, for a continuous period
of not less than twelve (12) months.
(h) Capitalized terms used herein and not otherwise defined shall
[INTENTIONALLY LEFT BLANK]
88WV -6-
<PAGE> 14
have the meaning ascribed to them in the Merger Agreement.
IN WITNESS WHEREOF, Cardinal and Whitmire have caused this Amendment and
Restatement to be executed on their behalf by their officers duly authorized
and the Optionee has personally executed this Amendment and Restatement.
<TABLE>
<S> <C>
OPTIONEE CARDINAL HEALTH, INC.
________________________ By ___________________________
(Signature)
Address:
[Typed Name]
655 Metro Place South, Suite 925
Optionee's Address: Dublin, Ohio 43017
Attn: General Counsel
________________________
WHITMIRE DISTRIBUTION CORPORATION
________________________
By ___________________________
Address:
81 Blue Ravine Road
Folsom, California 95630
Attn: Secretary
</TABLE>
(A) Number of Class A
Common Shares:
(B) Exercise Price:
(C) Whitmire Option:
Date of Grant:
Number of Shares:
Exercise Price:
(D) Initial Vested Percentage:
<TABLE>
<CAPTION>
(E) Anniversary of Percentage of Shares
Date of Grant Exercisable
------------- --------------------
<S> <C>
Third . . . . . . . . . . . . . . %
Fourth . . . . . . . . . . . . . . 100%
</TABLE>
88WV -7-
<PAGE> 15
CARDINAL HEALTH, INC.
AMENDED AND RESTATED
NONSTATUTORY STOCK OPTION AGREEMENT
W I T N E S S E T H:
WHEREAS, Cardinal Health, Inc. (fka Cardinal Distribution, Inc.; herein,
"Cardinal") and Whitmire Distribution Corporation ("Whitmire") have effected an
Agreement and Plan of Reorganization, dated as of October 11, 1993 (the "Merger
Agreement"), which Merger Agreement provides, among other things, that at the
Effective Time (as defined therein) each unexpired and unexercised option
heretofore granted to the undersigned optionee (the "Optionee") by Whitmire (a
"Whitmire Option") is to be automatically converted into an option (a "Cardinal
Exchange Option") to purchase that number of Cardinal Class A Common Shares (as
defined in the Merger Agreement) equal to the number of Whitmire Common Shares
issuable immediately prior to the Effective Time upon exercise of the Whitmire
Option (without regard to actual restrictions on exercisability) multiplied by
the Exchange Ratio at a per share exercise price equal to the exercise price
which existed under the corresponding Whitmire Option divided by the Exchange
Ratio; and
WHEREAS, Cardinal, Whitmire, and Optionee intend this option to be a Cardinal
Exchange Option as described in the Merger Agreement;
NOW, THEREFORE, the Nonstatutory Stock Option Agreement heretofore granted by
Whitmire to Optionee is hereby amended and restated (the "Amendment and
Restatement") as follows:
SECTION 1. EXCHANGE OF OPTION.
On the terms and subject to the conditions stated in this Amendment and
Restatement Cardinal hereby exchanges with the Optionee an option (the
"Option") to purchase up to that number of Cardinal Class A Common Shares
specified under (A) on the signature page hereof (the "Shares") for a purchase
price per Share as specified under (B) on the signature page hereof (as
adjusted from time to time in accordance with the terms of this Amendment and
Restatement, the "Exercise Price") in exchange for the Whitmire Option
identified under (C) on the signature page hereof, a copy of which is appended
hereto.
SECTION 2. NO TRANSFER OR ASSIGNMENT OF OPTION.
Except as otherwise provided in this Amendment and Restatement, the Option and
the rights and privileges conferred hereby shall not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise)
and shall not be
88WOV -1-
<PAGE> 16
subject to sale under execution, attachment or similar process. Upon any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of the
Option, or of any right or privilege conferred hereby, contrary to the
provisions hereof, or upon any attempted sale under any execution, attachment
or similar process upon the rights and privileges conferred hereby, the Option
shall automatically expire and the rights and privileges conferred hereby shall
immediately become null and void.
SECTION 3. RIGHT TO EXERCISE.
On the terms and subject to the conditions set forth in this Amendment and
Restatement, the Optionee shall have the right to exercise the Option at any
time or from time to time after the date hereof and prior to the Expiration
Date for a number of Shares equal to (i) the total number of Shares minus (ii)
the aggregate number of Shares for which the Option was theretofore exercised.
SECTION 4. EXERCISE PROCEDURES.
(a) NOTICE OF EXERCISE. The Optionee or the Optionee's representative may
exercise this Option by giving written notice to Cardinal pursuant to Section
9(d). The notice shall specify the election to exercise the Option and the
number of Shares for which it is being exercised. In the event that this
Option is being exercised by the representative of the Optionee, the notice
shall be accompanied by proof (satisfactory to Cardinal) of the
representative's right to exercise this Option. The notice shall be signed by
the Optionee. The Optionee or his representative shall deliver to Cardinal at
the time of giving the notice payment of the Purchase Price in accordance with
Section 5.
(b) ISSUANCE OF SHARES. Upon the exercise of the Option, Cardinal agrees to
issue to the Optionee as soon as practicable following payment of the Purchase
Price a certificate or certificates for the number of Shares with respect to
which the Option is exercised, registered in the name of the person exercising
this Option (or in the names of such person and his or her spouse as community
property or as joint tenants with right of survivorship). Cardinal shall cause
such certificate or certificates to be delivered to or upon the order of the
person exercising this Option.
SECTION 5. PAYMENT FOR STOCK.
The entire Purchase Price may be paid in lawful money of the United States of
America. Alternatively, to the extent that applicable law permits, all or part
of the Purchase Price may be paid by the surrender of Shares in good form for
transfer. Such Shares must have been owned for more than twelve (12) months by
the Optionee or the Optionee's representative and must have a fair market value
on the date of exercise of this Option which, together with any amount paid in
lawful money, is equal to the Purchase Price.
88WOV -2-
<PAGE> 17
SECTION 6. TERM AND EXPIRATION.
(a) BASIC TERM. This Option shall in any event expire on the date ten (10)
years after the Date of Grant.
(b) TERMINATION OF SERVICE (EXCEPT BY DEATH). If the Optionee's service as an
Employee terminates for any reason other than death, then this Option shall
expire on the earliest of the following occasions:
(i) the expiration date determined pursuant to Subsection (a) above;
(ii) the date forty five (45) days after the termination of the
Optionee's service as an Employee for any reason other than Total and
Permanent Disability;
(iii) the date six (6) months after the termination of the Optionee's
service as an Employee by reason of Total and Permanent Disability.
The Optionee may exercise all or part of this Option at any time before its
expiration under the preceding sentence. In the event that the Optionee dies
after the termination of service but before the expiration of this Option, all
or part of this Option may be exercised (prior to expiration) by the executors
or administrators of the Optionee's estate or by any person who has acquired
this Option directly from the Optionee by bequest, beneficiary designation or
inheritance.
(c) DEATH OF OPTIONEE. If the Optionee dies as an Employee, this Option shall
expire on the earlier of the following dates:
(i) the expiration date determined pursuant to Subsection (a) above; or
(ii) the date six (6) months after the Optionee's death.
All or part of this Option may be exercised at any time before its expiration
under the preceding sentence by the executors or administrators of the
Optionee's estate or by any person who has acquired this Option directly from
the Optionee by bequest, beneficiary designation or inheritance.
(d) LEAVES OF ABSENCE. For purposes of this Section 6, the Employee
relationship shall be deemed to continue during any period when the Optionee is
on military leave, sick leave or other bona fide leave of absence.
SECTION 7. RESTRICTIONS ON TRANSFER OF SHARES.
(a) INVESTMENT INTENT AT GRANT. The Optionee represents and agrees that the
Shares to be acquired upon exercising the Option will be acquired for the
Optionee's own account for investment
88WOV -3-
<PAGE> 18
and not with a view to or for sale in connection with any distribution thereof
in violation of the Securities Act.
(b) INVESTMENT INTENT AT EXERCISE. In the event that the sale of Shares under
this Amendment and Restatement is not registered under the Securities Act but
an exemption is available which requires an investment representation, the
Optionee shall represent and agree at the time of exercise that the Shares
being acquired upon exercising the Option are being acquired for investment and
not with a view to the sale or distribution thereof in violation of the
Securities Act.
(c) LEGEND. All certificates evidencing Shares acquired under this Amendment
and Restatement in an unregistered transaction shall bear the following
restrictive legend (and such other restrictive legends as are required or
deemed advisable under the provisions of any applicable law):
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF
COUNSEL, SATISFACTORY TO CARDINAL AND ITS COUNSEL, THAT SUCH REGISTRATION IS
NOT REQUIRED."
(d) REMOVAL OF LEGENDS. If, in the opinion of Cardinal and its counsel, any
legend placed on a stock certificate representing Shares sold under this
Amendment and Restatement is no longer required, the holder of such certificate
shall be entitled to exchange such certificate for a certificate representing
the same number of Shares but lacking such legend; provided, however, that upon
the effectiveness of the registration provided for in Section 10 hereof, the
legend shall be so removed.
SECTION 8. SHARES AND ADJUSTMENTS.
(a) GENERAL. In the event of a subdivision of the outstanding Shares, a
declaration of a dividend payable in Shares, a declaration of a dividend
payable in a form other than Shares in an amount that has a material effect on
the value of Shares, a combination or consolidation of the outstanding Shares
(by reclassification or otherwise) into a lesser number of Shares, a
recapitalization or a similar occurrence, an appropriate adjustment shall be
made in one or both of (i) the number of Shares covered by this Option or (ii)
the Exercise Price.
(b) MERGER; REORGANIZATION. In the event that Cardinal is a party to a merger
or other reorganization, this Option shall be subject to the agreement of
merger or reorganization. Such agreement may provide (i) for the assumption of
this Option by the surviving corporation or its parent, (ii) for its
continu-ation by Cardinal, if Cardinal is a surviving corporation, (iii) for
payment of a cash settlement equal to the difference between the amount to be
paid for one Share under such agreement and the Exercise Price, or (iv) for the
acceleration of its exercis-
88WOV -4-
<PAGE> 19
ability followed by its cancellation if not exercised, in all cases other than
clause (iii) without the Optionee's consent. (The Optionee's consent shall be
required for a cash settlement.) Any cancellation shall not occur earlier
than 30 days after such acceleration is effective after the Optionee has been
notified of such acceleration.
(c) RESERVATION OF RIGHTS. Except as provided in this Section 8, the Optionee
shall have no rights by reason of (i) any subdivision or consolidation of
shares of stock of any class, (ii) the payment of any dividend or (iii) any
other increase or decrease in the number of shares of stock of any class. Any
issue by Cardinal of shares of stock of any class, or securities convertible
into shares of stock of any class, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number or Exercise Price of
the Shares subject to this Option. Except as expressly provided herein, this
Option shall not affect in any way the right or power of Cardinal to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structure, to merge or consolidate or to dissolve, liquidate, sell or
transfer all or any part of its business or assets.
SECTION 9. MISCELLANEOUS PROVISIONS.
(a) WITHHOLDING TAXES. In the event that Cardinal determines that it is
required to withhold foreign, federal, state or local tax as a result of the
exercise of this Option, the Optionee, as a condition to the exercise of this
Option, shall make arrangements satisfactory to Cardinal to enable it to
satisfy all withholding requirements.
(b) RIGHTS AS A STOCKHOLDER. Neither the Optionee nor the Optionee's
representative shall have any rights as a stockholder with respect to any
Shares subject to this Option until such Shares have been issued in the name of
the Optionee or the Optionee's representative.
(c) NO EMPLOYMENT RIGHTS. Nothing in this Amendment and Restatement shall be
construed as giving the Optionee the right to be retained as an Employee.
Except as may be provided in any written employment agreement between Optionee
and Whitmire or Cardinal, Whitmire and Cardinal reserve the right to terminate
the Optionee's service at any time, with or without cause.
(d) NOTICE. Any notice required by the terms of this Amendment and
Restatement shall be given in writing and shall be deemed effective upon
personal delivery or upon deposit with the United States Postal Service, by
registered or certified mail with postage and fees prepaid and addressed to the
party entitled to such notice at the address shown below such party's signature
on this Agreement, or at such other address as such party may designate by ten
(10) days' advance written notice to the other party to this Agreement.
88WOV -5-
<PAGE> 20
(e) ENTIRE AGREEMENT. This Amendment and Restatement constitutes the entire
contract between the parties hereto with regard to the subject matter hereof.
(f) CHOICE OF LAW. This Amendment and Restatement shall be governed by, and
construed in accordance with, the laws of the State of California, as such laws
are applied to contracts entered into and performed in such State.
SECTION 10. REGISTRATION. Cardinal shall file with the Securities and
Exchange Commission within six (6) months of the Closing Date (as defined in
the Merger Agreement), and shall use all reasonable efforts to have declared
effective, a registration statement on Form S-8 or other appropriate form under
the Securities Act of 1933, as amended (the "Securities Act"), to register the
Shares and shall use all reasonable efforts to cause such registration
statement to remain effective until the exercise or expiration of this Option.
SECTION 11. DEFINITIONS.
(a) "DATE OF GRANT" shall mean the date on which the Whitmire Option for which
this Option has been exchanged was granted, as specified under (C) on the
signature page hereof.
(b) "EMPLOYEE" shall mean any individual who is a common-law employee of
Cardinal, Whitmire or any entity controlling, controlled by, or under the
common control of either.
(c) "EXERCISE PRICE" shall mean the amount for which one Share may be
purchased upon exercise of this Option, as specified in Section 1.
(d) "PURCHASE PRICE" shall mean the Exercise Price multiplied by the number of
Shares with respect to which this Option is being exercised.
(e) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
(f) "SHARE" shall mean one Cardinal Class A Common Share (as defined in the
Merger Agreement), as adjusted in accordance with Section 8 (if applicable).
(g) "TOTAL AND PERMANENT DISABILITY" shall mean that the Optionee is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted, or can be expected to last, for a continuous period
of not less than twelve (12) months.
(h) Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to them in the Merger Agreement.
88WOV -6-
<PAGE> 21
IN WITNESS WHEREOF, Cardinal and Whitmire have caused this Amendment and
Restatement to be executed on their behalf by their officers duly authorized
and the Optionee has personally executed this Amendment and Restatement.
<TABLE>
<S> <C>
OPTIONEE Optionee's Address:
__________________________ __________________________________
(signature)
__________________________________
[Type Name]
WHITMIRE DISTRIBUTION CORPORATION
By _______________________________
Address:
81 Blue Ravine Road
Folsom, California 95630
Attn: Secretary
CARDINAL HEALTH, INC.
By _______________________________
Address:
655 Metro Place South, Suite 925
Dublin, OH 43017
Attn: General Counsel
(A) Number of Class A
Common Shares:
(B) Exercise Price:
(C) Whitmire Option:
Date of Grant:
Number of Whitmire
Common Shares:
Exercise Price:
</TABLE>
88WOV -7-
<PAGE> 1
Exhibit 5
[Baker & Hostetler Letterhead]
March 4, 1994
Cardinal Health, Inc.
655 Metro Place South, Suite 925
Dublin, Ohio 43017
Gentlemen:
We have acted as counsel to Cardinal Health, Inc., an Ohio
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement") filed under the Securities
Act of 1933 (the "Act") relating to the offering of up to 1,377,000 Common
Shares, without par value (the "Common Shares"), of the Company pursuant to the
amended and restated stock option agreements entered into between the Company
and former holders of options to purchase shares of Common Stock $.01 par value
of Whitmire Distribution Corporation, a Delaware corporation (the "Cardinal
Exchange Option Agreements").
In connection with the foregoing, we have examined: (a) the
Amended and Restated Articles of Incorporation, as amended, and Code of
Regulations, as amended and restated, of the Company, (b) the Cardinal Exchange
Option Agreements, and (c) such records of the corporate proceedings of the
Company and such other documents as we deemed necessary to render this opinion.
Based on such examination, we are of the opinion that:
1. The Company is a corporation duly organized and
validly existing under the laws of the State of Ohio.
2. The Common Shares available for issuance under the
Plan, when issued pursuant to the Cardinal Exchange Option Agreements upon
exercise of options granted thereunder, will have been legally issued, and
will be fully paid and nonassessable.
We hereby consent to the use of this Opinion as Exhibit 5 to
the Registration Statement and the reference to our firm in Item 5 of Part II
of the Registration Statement.
Very truly yours,
/s/Baker & Hostetler
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Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Cardinal Health, Inc. (formerly known as Cardinal Distribution, Inc.) on Form
S-8 of our report dated May 11, 1993, except for Note 14, as to which the date
is June 11, 1993, and except for Notes 1 and 7, as to which the date is August
6, 1993, appearing in the amended Annual Report on Form 10-K/A of Cardinal
Health, Inc. for the year ended March 31, 1993, and of our report dated
February 10, 1994 appearing in the Current Report on Form 8-K of Cardinal
Health, Inc. dated February 11, 1994.
/s/ Deloitte & Touche
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DELOITTE & TOUCHE
Columbus, Ohio
March 3, 1994
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Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
September 3, 1993 included in Cardinal Health, Inc.'s Form 10-Q for the quarter
ended December 31, 1993 and Form 8-K filed February 11, 1994 and to all
references to our Firm included in this registration statement.
/s/ Arthur Andersen & Co.
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Sacramento, California
March 2, 1994
