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Exhibit 99a
CARDINAL HEALTH, INC.
UNDERWRITING AGREEMENT
February ___, 2001
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
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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. 333-46482 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
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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 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
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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.
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(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.
(l) Xxxxxx Xxxxxxxx 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
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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:
(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
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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 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.
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(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 Repre
sentative 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 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
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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
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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
(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, Xxxxx &
Xxxxxxxxx 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
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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 Xxxxx & Xxxxxxxxx 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)
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 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
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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 Repre
sentative 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, Xxxxxx Xxxxxxxx LLP and
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 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
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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, 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
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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 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
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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. The Company acknowledges
that the statements set forth in the last paragraph on the cover page, the third
and sixth paragraphs, and the third and fourth sentences in the fifth paragraph
along with the third sentence in the seventh paragraph 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 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 indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
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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
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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 Xxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000, Attention: Chief
Legal Officer.
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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.
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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
BANC OF AMERICA SECURITIES LLC
For itself and the other
several Underwriters, if any,
named in Schedule II to this
Agreement.
By:
Title:
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SCHEDULE I
Registration Statements Nos. 333-24483
333-46482
Representative(s) (including, address for notice):
Title, Purchase Price and Description of Securities:
Title:
Principal Amount and Currency:
Issue Price:
Underwriters' Discount:
Purchase Price:
Optional Redemption Provisions: The Notes will be redeemable, in whole
or, from time to time, in part, at the option of the Company at any
time at a redemption price equal to the greater of (i) 100% of the
principal amount of the Notes to be redeemed or (ii) as determined by a
Quotation Agent, the sum of the present values of the remaining
scheduled payments of principal and interest thereon (exclusive of
interest accrued to the date of redemption) discounted to the date of
redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate plus 15 basis
points, plus, in each case, accrued and unpaid interest on the
principal amount being redeemed to the date of redemption.
Maturity Date:
Interest Rate:
Interest Payment Dates: and , commencing
Interest Accrues From: , 2001
Closing Date, Time and Location:
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o , 2001 at 10 a.m.
Cardinal Health, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Day Count: 30/360
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SCHEDULE II
Principal Amount of
Underwriters Securities to be
------------ Purchased
$
$
$
Total $
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