CARDINAL HEALTH, INC.
FORM OF UNDERWRITING AGREEMENT
_________, 200_
To the Representatives named
in Schedule I hereto of
the Underwriters named in
Schedule II hereto
Dear Sirs:
Cardinal Health, Inc., an Ohio corporation (the "COMPANY"),
proposes to sell to underwriters named in Schedule II hereto (the
"UNDERWRITERS") for whom you are acting as representative (the
"REPRESENTATIVE"), the principal amount of its securities (the "SECURITIES")
identified in Schedule I hereto issued under an indenture (the "INDENTURE")
dated as of April 18, 1997, between the Company and Bank One, NA (formerly known
as Bank One, Columbus, NA), as trustee (the "TRUSTEE"). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "UNDERWRITERS" and "REPRESENTATIVE", as used herein,
shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "ACT") and has filed with the
Securities and Exchange Commission (the "COMMISSION") registration
statements on such Form (the file numbers of which are set forth in
Schedule I hereto), which have become effective, for the registration
under the Act of the Securities. Such registration statements meet the
requirements set forth in Rule 415(a)(1)(x) under the Act and comply in
all other material respects with said Rule. The Company proposes to
file with the Commission pursuant to Rule 424(b) under the Act a
supplement to the form of prospectus included in such registration
statements relating to the Securities and the plan of distribution
thereof and has previously advised you of all further information
(financial and other) with respect to the Company to be set forth
therein. Such registration statements, including the exhibits thereto,
as amended at the date of this Agreement, are hereinafter called the
"REGISTRATION STATEMENT"; such prospectus in the form in which it
appears in the Registration Statement No. 333-62944 is hereinafter
called the "BASIC PROSPECTUS"; and such supplemented form of
prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424(b) (including the Basic Prospectus as so
supplemented) is hereinafter called the "FINAL PROSPECTUS". Any
preliminary form of the Final Prospectus which has heretofore been
filed pursuant to Rule 424(b) is hereinafter called the "PRELIMINARY
FINAL PROSPECTUS". Any reference herein to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incorporated
by reference therein (the "INCORPORATED DOCUMENTS") pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934
(the "EXCHANGE ACT") on or before the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be; and any reference herein to
the terms "AMEND", "AMENDMENT" or "SUPPLEMENT" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is
first filed pursuant to Rule 424(b) under the Act, when, prior to the
Closing Date (as defined in Section 3 hereof), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the Commission and
at the Closing Date, (i) the Registration Statement, as amended as of
any such time, and the Final Prospectus, as amended or supplemented as
of any such time, and the Indenture will comply in all material
respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939 (the "TRUST INDENTURE ACT") and the Exchange Act
and the respective rules thereunder and (ii) neither the Registration
Statement, as amended as of any such time, nor the Final Prospectus, as
amended or supplemented as of any such time, will contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; provided, that the Company makes no
representations or warranties as to (1) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification of the Trustee (Form T-1) under the Trust Indenture Act
or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representative specifically for use in the Registration
Statement or the Final Prospectus.
(c) The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of Ohio
with corporate power and authority to own and hold under lease its
properties and conduct its business as described in the Final
Prospectus and holds all material licenses and is duly qualified to
conduct the business in which it is engaged in each jurisdiction or
place where the conduct of its business requires such licenses or
qualification and where the failure to be so licensed or qualified
would have a material adverse effect on the business or financial
condition of the Company and its subsidiaries taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(d) Each of the Company's significant subsidiaries (as
defined in Rule 405 under the Act) is duly organized and validly
existing in good standing under the laws of
2
the jurisdiction of its incorporation with corporate power and
authority to own and hold under lease its properties and to conduct its
business as described in the Final Prospectus.
(e) The Indenture has been duly and validly authorized,
executed and delivered by the Company and, assuming due execution and
delivery by the Trustee, is a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and subject to the
applicability of general principles of equity, and has been duly
qualified under the Trust Indenture Act.
(f) The Securities have been duly authorized and, when
executed by the Company and authenticated by the Trustee in accordance
with the Indenture and delivered to you against payment therefor in
accordance with the terms of this Agreement, will have been validly
issued and delivered, and will constitute valid and binding obligations
of the Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and subject to
the applicability of general principles of equity, and the Securities
conform in all material respects to the description thereof in the
Final Prospectus.
(g) There are no legal or governmental proceedings
pending, or to the knowledge of the Company threatened, required to be
described in the Registration Statement or the Final Prospectus which
are not described as required, and there is no contract or document of
a character required to be described in the Registration Statement or
the Final Prospectus or to be filed as an exhibit to the Registration
Statement or any Incorporated Document which is not described or filed
as required.
(h) The Company is not in violation of its charter or
code of regulations or in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any indenture, material lease or
loan agreement, except where any default would not have a Material
Adverse Effect. The issue and sale of the Securities, the execution and
delivery of this Agreement, the performance of the obligations of the
Company set forth herein and the consummation of the transactions
contemplated hereby will not conflict with or constitute a breach of,
or default under, the charter or code of regulations of the Company or
any of its subsidiaries, any agreement, indenture or other instrument
to which the Company or any of its subsidiaries is a party or by which
any of them or any of their property is bound, or any law,
administrative regulation or court decree applicable to the Company or
any of its subsidiaries, except where any breach or default would not
have a Material Adverse Effect.
(i) Neither the execution and delivery of this Agreement,
nor the fulfillment of the terms herein set forth and the consummation
of the transactions herein contemplated require any consent, approval,
authorization or other order of any court,
3
regulatory body, administrative agency or other governmental body
(except such as have been obtained under the Act and the Trust
Indenture Act or such as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters).
(j) This Agreement has been duly authorized, executed and
delivered by the Company.
(k) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(l) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, PricewaterhouseCoopers LLP and
Deloitte & Touche LLP, who have certified the financial statements and
supporting schedules included in the Registration Statement as
described under "Experts", are each independent public accountants with
respect to the entities and for the periods they have audited as
required by the Act.
2. Purchase and Sale. Subject to the terms and
conditions hereof and in reliance upon the representations, warranties and
agreements herein set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I hereto the principal
amount of the Securities set forth opposite such Underwriter's name in Schedule
II hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at the location, date and time specified in Schedule I
hereto (or such later date not later than five Business Days (as hereinafter
defined) after such specified date as the Representative and the Company shall
designate), which date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "CLOSING
DATE"). Delivery of the Securities shall be made to the Representative for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representative of the purchase price thereof to or upon
the order of the Company by certified or official bank check or checks drawn in
federal funds or similar same day funds, by wire transfer in same day funds or
as otherwise agreed by the Company and the Representative. Certificates for the
Securities shall be registered in such names and in such denominations as the
Representative may request not less than one full Business Day in advance of the
Closing Date. The term "Business Day" means each day which is neither a
Saturday, Sunday or other day on which banking institutions in New York, New
York are authorized or required by law or executive order to be closed.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representative in New York, New York,
not later than 1:00 PM on the Business Day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
4
(a) Prior to the later of (i) termination of the offering
of the Securities as determined by the Representative and as evidenced
by written notice thereof to the Company from the Representative or
(ii) the Closing Date, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus
but excluding any prospectus supplement relating to a subsequent
issuance of securities) to the Basic Prospectus unless the Company has
furnished the Representative a copy for the Representative's review a
reasonable time prior to filing thereof. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424(b) under the Act. The Company will
promptly advise the Representative (i) when the Final Prospectus shall
have been filed with the Commission pursuant to Rule 424(b), (ii) when
any amendment to the Registration Statement relating to the Securities
shall have become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use all reasonable efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and file
with the Commission, subject to the first sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance.
(c) The Company will make generally available within the
meaning of Section 11(a) of the Act to its securityholders an earning
statement, which need not be audited, covering a twelve- month period
commencing after the date of this Agreement and ending not later than
15 months thereafter as soon as practicable following the end of such
period, which earning statement shall satisfy the provisions of Section
11(a) of the Act and may consist of earning statements covering
successive fiscal quarters.
(d) The Company will furnish to the Representative and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Preliminary Final
Prospectus and the ▇▇▇▇▇
▇
Prospectus and any amendments thereof and supplements thereto as the
Representative may reasonably request. The Company will pay the
expenses of printing all documents relating to the offering unless
otherwise agreed with the Representative.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representative may reasonably designate and will maintain such
qualifications in effect so long as required for the distribution of
the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to the
service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(f) Until the Business Day following the Closing Date,
the Company will not, without the prior consent of the Representative,
offer, sell, contract to sell, or otherwise dispose of any debt
securities of the Company which mature more than one year following the
Closing Date and which are substantially similar to the Securities.
5. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy in all material respects of the representations and warranties
on the part of the Company contained herein as of the date hereof, as of the
date of the effectiveness of any amendment to the Registration Statement filed
prior to the Closing Date (including the filing of any document incorporated by
reference therein) and as of the Closing Date, to the accuracy of the statements
of the Company made in any certificates delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened, and the Final Prospectus shall have been filed with the
Commission not later than 5:00 P.M., New York City time, on the second
Business Day following the date hereof.
(b) The Company shall have furnished to the
Representative the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Company,
dated the Closing Date, to the effect that:
(i) the Company is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Ohio;
(ii) each significant subsidiary (as defined in
Rule 405 under the Act) of the Company is a corporation duly
incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation;
(iii) except for permits and similar
authorizations required under the securities or Blue Sky laws
of certain jurisdictions (as to which such counsel need not
express an opinion), no consent, approval, authorization or
other order of any
6
regulatory body, administrative agency or other governmental
body is legally required for the valid issuance and sale of
the Securities to the Underwriters in the manner contemplated
by this Agreement;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Indenture has been duly and validly
authorized, executed and delivered by the Company and,
assuming due execution and delivery by the Trustee, is a valid
and binding agreement of the Company and has been duly
qualified under the Trust Indenture Act;
(vi) the Securities have been duly and validly
authorized and executed by the Company and, assuming due
authentication of such Securities by the Trustee, upon
delivery to the Underwriters against payment therefor in
accordance with the terms of this Agreement, will have been
validly issued and delivered, and will constitute valid and
binding obligations of the Company entitled to the benefits of
the Indenture;
(vii) the Registration Statement and all
post-effective amendments, if any, have become effective under
the Act, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for such purpose
are pending before or contemplated by the Commission and the
filing of the Final Prospectus pursuant to Rule 424(b) has
been made in accordance with Rule 424(b);
(viii) (1) each of the Incorporated Documents
complies as to form in all material respects with the Exchange
Act and the rules and regulations of the Commission thereunder
and (2) the Registration Statement and the Final Prospectus
and any supplements or amendments thereto (including the
Incorporated Documents) comply as to form in all material
respects with the Act;
(ix) the statements in the Final Prospectus under
the captions "Description of Debt Securities" and "Certain
Terms of Notes", insofar as such statements constitute a
summary of the documents and other legal matters referred to
therein, fairly present the information called for by the Act
with respect to such documents and other legal matters;
(x) there are no legal or governmental
proceedings known to such counsel pending or threatened
required to be described in the Registration Statement or the
Final Prospectus which are not described as required, and
there is no contract or document known to such counsel of a
character required to be described in the Registration
Statement or the Final Prospectus or to be filed as an exhibit
to the Registration Statement which is not described or filed
as required; and
7
(xi) the execution, delivery and performance of
this Agreement and the Indenture, compliance by the Company
with all provisions hereof and thereof and the consummation by
the Company of the transactions contemplated hereby and
thereby do not conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the
certificate or articles of incorporation or bylaws or code of
regulations of the Company or any of its significant
subsidiaries or any agreement, indenture or other instrument
known to such counsel to which the Company or any of its
significant subsidiaries is a party or by which any of them is
bound which conflict or default would have a Material Adverse
Effect, or (assuming compliance with all applicable state
securities and Blue Sky laws and without opining as to the
enforceability of rights of indemnity or contribution under
applicable law) violate any law, administrative regulation or
ruling or court decree known to such counsel applicable to the
Company or any of its significant subsidiaries or any of their
respective property which violation would have a Material
Adverse Effect.
In rendering the opinion set forth above, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
LLP may (A) assume that New York law is substantially similar to Ohio
law with respect to the opinions delivered in subsections (v) and (vi)
concerning the valid and binding nature of the obligations of the
Indenture and the Securities; (B) assume the genuineness without
independent investigation, of all signatures on all documents examined
by such firm, the conformity to original documents of all documents
submitted to such firm as certified or facsimile copies and the
authenticity of all such documents; and (C) rely as to matters of law
of any State other than Ohio upon the opinion of counsel licensed to
practice in such state and satisfactory to the Representative (provided
that such opinion shall state that the Representative and ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP are entitled to so rely) and as to certain matters of
fact, upon certificates and written statements of officers and
employees of, and accountants for, the Company.
Such counsel shall have also furnished to the Representative a
written statement dated the Closing Date to the effect that, based upon
their participation in the preparation of the Registration Statement
and the Final Prospectus and any amendments and supplements thereto and
upon their review and discussion of the contents thereof, but without
independent check or verification except as specified, nothing has come
to such counsel's attention which would lead them to believe that the
Registration Statement at the time it became effective and at the date
of this Agreement contained any untrue statement of any material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus (as amended or supplemented, if applicable) as of its
date or the Closing Date contains any untrue statement of a material
fact or omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. Such counsel may state that, in rendering the
opinion in (viii) above and the written statement referred to in the
preceding sentence, they are not expressing any opinion on the
financial statements and financial exhibits and other financial data
included therein or omitted therefrom and that they are not
8
responsible for the adequacy or accuracy of the derivation or
compilation from the Company's accounting records of the financial data
included in the Registration Statement or the Final Prospectus and any
amendments and supplements thereto.
(c) The Representative shall have received from Shearman
& Sterling, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Final
Prospectus and other related matters as the Representative may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters. In rendering their opinion,
Shearman & Sterling may rely on the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
referred to in paragraph (b) above as to all matters of Ohio law.
(d) The Company shall have furnished to the
Representative a certificate of the Company signed by the Chairman of
the Board, the President or any Vice President of the Company dated the
Closing Date, to the effect that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement, as amended, has been issued and
no proceedings for that purpose have been instituted or, to
the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been no
material adverse change in the financial condition, earnings,
business, properties or results of operations of the Company
and its subsidiaries on a consolidated basis, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final
Prospectus.
(e) At the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Deloitte &
Touche LLP and PricewaterhouseCoopers LLP shall have furnished to the
Representative a letter or letters (which may refer to letters
previously delivered to the Representative, a copy of which shall be
attached, in which case the letter provided at the Closing Date shall
state that the previous letter can be relied on), dated the Closing
Date, in form and substance satisfactory to the Representative,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference in the Final Prospectus.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus (exclusive of any supplement thereto)
9
and prior to the Closing Date, there shall not have been any change, or
any development involving a prospective change, in or affecting the
business, properties or results of operations of the Company and its
subsidiaries on a consolidated basis, the effect of which is, in the
reasonable judgment of the Representative, so material and adverse as
to make it impractical to proceed with the offering or the delivery of
the Securities as contemplated by the Registration Statement and the
Final Prospectus.
(g) Subsequent to the execution of this Agreement and
prior to the Closing Date, there shall not have been any downgrading in
the ratings of any of the Company's debt securities, by any "nationally
recognized statistical rating organization," as such term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act or any
public announcement by any such organization that it has under
surveillance or review with negative implications, its rating of any of
the Company's debt securities (or proposed rating of the Securities).
(h) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled to the reasonable satisfaction of the Representative when
and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be to the reasonable
satisfaction of the Representative and its counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representative. Notice of such cancellation
shall be given to the Company by telephone or in the manner described in Section
12 hereof.
6. Expenses. (a) The Company covenants and agrees with
the Representative that the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Final Prospectus and the Final
Prospectus and amendments and supplements thereto and the mailing and delivery
of copies thereof to Underwriters and dealers; (ii) the cost of printing this
Agreement, the Indenture, any blue sky and legal investment memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws, including the
reasonable fees and disbursements of counsel for the Representative in
connection with such qualification and in connection with any blue sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the cost of preparing the Securities; (vi) the fees
and expenses of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities; and (vii) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, the Representative will
10
pay all of its own costs and expenses, including the fees of its counsel,
transfer taxes on resale of any of the Securities by it, and any advertising
expenses connected with the Securities.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all reasonable and detailed out-of-pocket expenses
(including reasonable fees and disbursements of counsel as stated with
particularity) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each person who
controls any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them as such expenses are
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representative specifically for use
therein. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representative specifically for use in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect
11
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party under this Section 8 to the
extent it is not prejudiced as a proximate result of such omission. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel (which shall not be unreasonably withheld or
delayed), the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate counsel (in addition to any local counsel), approved by the
Representative in the case of paragraph (a) of this Section 8, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). The indemnifying party shall not be
liable for any settlement of any such action effected without its written
consent, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify the indemnified parties against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such amount paid or
payable by such
12
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Final Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount of total
underwriting discounts and commissions actually received by it under this
Agreement. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, that in the event that the
aggregate principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriter or Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any
13
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in any securities of the Company shall have been suspended
or materially limited by the Commission or the New York Stock Exchange, or
trading in securities generally on the New York Stock Exchange, American Stock
Exchange or The Nasdaq National Market shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
shall have been declared either by Federal or state authorities or a material
disruption shall have occurred in commercial banking or securities settlement or
clearance services in the United States or (iii) there shall have occurred any
outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions, the
effect of which on the financial markets of the United States is such as to make
it, in the judgment of the Representative, impracticable or inadvisable to
market the Securities or to enforce contracts for the sale of the Securities.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 6, 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representative, will
be mailed, delivered or telexed and confirmed to it, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telexed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Legal Officer.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Securities from any of the Underwriters.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the several Underwriters.
Very truly yours,
CARDINAL HEALTH, INC.
-----------------------------
By:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first specified above
[NAME OF REPRESENTATIVE[S]]
For itself and the other
several Underwriters, if any,
named in Schedule II to this
Agreement.
-----------------------------
By:
Title:
15
SCHEDULE I
REGISTRATION STATEMENTS NOS.:
333-46482
333-62944
REPRESENTATIVE(S) (INCLUDING, ADDRESS FOR NOTICE):
TITLE, PURCHASE PRICE AND DESCRIPTION OF SECURITIES:
Title:
Principal Amount and Currency:
Issue Price:
Underwriters' Discount:
Purchase Price:
Maturity Date:
Interest Rate:
Interest Payment Dates:
Interest Accrues From:
CLOSING DATE, TIME AND LOCATION:
Closing Date:
Closing Location:
Day Count:
SCHEDULE II
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
$
Total $