1
EXHIBIT 1
CARDINAL HEALTH, INC.
UNDERWRITING AGREEMENT
[Date]
To the Representative 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 ________, 1997, between the Company and 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") a registration
statement on such Form (the file number of which is set forth in
Schedule I hereto), which has become effective, for the registration
under the Act of the Securities. Such registration statement, as
amended at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1)(x) under the Act and complies 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 statement
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 statement, including the exhibits thereto, as amended at
the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the
Registration Statement 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
2
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 hereinafter 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 (2) 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 connection with the preparation of 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.
(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 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.
3
(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 hereof, 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 any material respect 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. 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 material
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.
(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, 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.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties 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 same day funds check or
Federal Funds wire
4
transfer 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 4:00 PM on the Business Day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(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 security holders 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
5
Preliminary Final Prospectus and the Final 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 Xxxxx & Xxxxxxxxx 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 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 the order of the Commission
declaring the Registration Statement effective and the
Indenture qualified and 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 regulatory body, administrative agency or other
governmental body is legally required for the valid issuance
and sale of the Securities to the Underwriters under 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;
6
(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 hereof, 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 [Description
of Securities], insofar as such statements constitute a summary
of the documents, proceedings and other legal matters referred
to therein, fairly present the information called for by the
Act with respect to such documents, proceedings 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
(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 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 charter or by-laws of
the Company or any of its significant subsidiaries or any
material 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, 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.
In rendering the opinion set forth above, Xxxxx & Xxxxxxxxx LLP
may (A) rely on the opinion of Xxxxx Xxxx & Xxxxxxxx referred to in
paragraph (c) below as to all matters of New York law opined upon in
such opinion of Xxxxx Xxxx & Xxxxxxxx; (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
7
(provided that such opinion shall state that the Representative and
Xxxxx & Xxxxxxxxx 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) contains any untrue statement of a
material fact or omits to state any material fact necessary in order
to make the statements therein, in the 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 included therein or omitted therefrom and that they are not
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 Xxxxx Xxxx &
Xxxxxxxx, 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,
Xxxxx Xxxx & Xxxxxxxx may rely on the opinion of Xxxxx & Xxxxxxxxx
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 in all
material respects 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 or properties 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, Deloitte & Touche 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
8
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 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 or properties 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 cancelled 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 II 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 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
9
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 the Act or 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 (i) 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 in connection with
the preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented); provided that the Company has delivered to the
several Underwriters copies of the Final Prospectus (or the Final Prospectus as
amended or supplemented) in requisite quantities on a timely basis to permit
such delivery. 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 the Act or 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 preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph on the cover page, and
under the heading "Underwriting", in any Preliminary Final Prospectus or Final
Prospectus constitute the only information furnished in writing by or on behalf
of the Underwriters for inclusion in the documents referred to in the foregoing
indemnity and the Representative hereby confirms that such statements are
correct.
(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 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
otherwise than under this Section 8. 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
10
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, 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 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 or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such 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
11
of this subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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 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 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 (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 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxx 00000,
Attention: Chairman.
12
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.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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
among 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 specified in
Schedule I hereto.
By:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
13
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s) (including, address for notice):
Title, Purchase Price and Description of Securities:
Title:
Principal Amount and Currency:
Issue Price:
Underwriters' Discount:
Purchase Price:
Sinking Fund Provisions:
Redemption Provisions:
Maturity Date:
Interest Rate:
Interest Payment Dates:
Interest Accrues From:
Closing Date, Time and Location:
14
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
------------ ----------------
$
$
$
----------------
Total $
