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Exhibit 10.27
FORM OF
COMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAM
BETWEEN
CARDINAL HEALTH, INC., AS ISSUER
AND
______________________________, AS DEALER
CONCERNING NOTES TO BE ISSUED PURSUANT TO AN
ISSUING AND PAYING AGENCY AGREEMENT
DATED AS OF JUNE 28, 1999
BETWEEN THE ISSUER AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS ISSUING AND PAYING AGENT
DATED AS OF
AUGUST 26, 1999
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COMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAM
This agreement (as amended, supplemented or otherwise modified and in
effect from time to time this "Agreement") sets forth the understandings between
the Issuer and the Dealer, each named on the cover page hereof, in connection
with the issuance and sale by the Issuer of its short-term promissory notes (the
"Notes") through the Dealer pursuant to the Issuing and Paying Agency Agreement
named on the cover page hereof.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described
in this Agreement or such Addendum, are hereby incorporated into this Agreement
and made fully a part hereof.
Section 1. OFFERS, SALES AND RESALES OF NOTES.
1.1 While (a) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (b) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, the Issuer shall not,
without the consent of the Dealer, offer, solicit or accept offers to purchase,
or sell, any Notes except (a) in transactions with one or more dealers which may
from time to time after the date hereof become dealers with respect to the Notes
by executing with the Issuer one or more agreements which contain provisions
substantially identical to those contained in Section 1 of this Agreement, of
which the Issuer hereby undertakes to provide the Dealer prompt notice or (b) in
transactions with the other dealers listed on the Addendum hereto, which are
executing agreements with the Issuer which contain provisions substantially
identical to Section 1 of this Agreement contemporaneously herewith. In no event
shall the Issuer offer, solicit or accept offers to purchase, or sell, any Notes
directly on its own behalf in transactions with persons other than
broker-dealers as specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such interest rates,
if interest bearing, or will be sold at such discount from their face amounts,
as shall be agreed upon by the Dealer and the Issuer, shall have
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a maturity not exceeding 270 days from the date of issuance (exclusive of days
of grace) and shall not contain any provision for extension, renewal or
automatic "rollover."
1.4 The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying Agency Agreement,
and the Notes shall be either individual physical certificates or book-entry
notes evidenced by a Master Note registered in the name of DTC or its nominee,
in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note arranged by the
Dealer (including, but not limited to, agreement with respect to the date of
issue, purchase price, principal amount, maturity and interest rate (in the case
of interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer (pursuant to telephonic
instructions received from the Dealer), to the Issuing and Paying Agent, for the
account of the Issuer. All Notes that the Issuer causes to be issued and
delivered through the Dealer shall be accomplished in accordance with the
following procedures: (a) the Issuer shall deliver telephonic instructions to
the Dealer; (b) once the Issuer and the Dealer have agreed upon the terms, the
Dealer shall deliver telephonic instructions to the Issuing and Paying Agent;
and (c) the Dealer shall deliver written confirmation of such telephonic
instructions to the Issuing and Paying Agent (with a copy to the Issuer) within
24 hours of the time such telephonic instructions were received by the Issuing
and Paying Agent. Except as otherwise agreed, in the event that the Dealer is
acting as an agent and a purchaser shall either fail to accept delivery of or
make payment for a Note on the date fixed for settlement, the Dealer shall
promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer
for the Note, the Issuer will promptly return such funds to the Dealer against
its return of the Note to the Issuer, in the case of a certificated Note, and
upon written notice of such failure in the case of a book-entry Note. If such
failure occurred for any reason other than default by the Dealer, the Issuer
shall reimburse the Dealer on an equitable basis for the Dealer's loss of the
use of such funds for the period such funds were credited to the Issuer's
account.
1.6 The Dealer and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer
shall be made only to: (i) investors reasonably believed by the Dealer
to be Qualified Institutional Buyers or Institutional Accredited
Investors and (ii) non-bank fiduciaries or agents that will be
purchasing Notes for one or more accounts, each of which is reasonably
believed by the Dealer to be an Institutional Accredited Investor.
Dealer shall utilize reasonable efforts and procedures to assure and
document that offers and sales of the Notes by or through the Dealer
are made only to purchasers of the type described in this Section
1.6(a).
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(b) Resales and other transfers of the Notes by the holders
thereof shall be made only in accordance with the restrictions in the
legend described in clause (e) below.
(c) No general solicitation or general advertising by either
party shall be used in connection with the offering of the Notes.
Without limiting the generality of the foregoing, without the prior
written approval of the Dealer, the Issuer shall not issue any press
release or place or publish any "tombstone" or other advertisement
relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less
than $250,000 principal or face amount, and no Note shall be issued in
a smaller principal or face amount. If the purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom such
purchaser is acting must purchase at least $250,000 principal or face
amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the
Dealer acting as agent for the Issuer shall be made in accordance with
Rule 506 under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall appear as
part of the Private Placement Memorandum used in connection with offers
and sales of Notes hereunder, as well as on each individual certificate
representing a Note and each Master Note representing book-entry Notes
offered and sold pursuant to this Agreement.
(f) The Dealer shall furnish or shall have furnished to each
purchaser of Notes for which it has acted as the Dealer a copy of the
then-current Private Placement Memorandum unless such purchaser has
previously received a copy of the Private Placement Memorandum as then
in effect. The Private Placement Memorandum shall expressly state that
any person to whom Notes are offered shall have an opportunity to ask
questions of, and receive information from, the Issuer and the Dealer
and shall provide the names, addresses and telephone numbers of the
persons from whom information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each
of the holders and prospective purchasers from time to time of the
Notes that, if at any time the Issuer shall not be subject to Section
13 or 15(d) of the Exchange Act, the Issuer will furnish, upon request
and at its expense, to the Dealer and to holders and prospective
purchasers of Notes information required by Rule 144A(d)(4)(i) in
compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by the
Dealer would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify the Dealer (by telephone, confirmed in writing) of
such fact and shall promptly prepare and deliver to the Dealer an
amendment or supplement to the Private Placement Memorandum describing
the Notes that are ineligible, the reason for such ineligibility and
any other relevant information relating thereto.
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(i) The Issuer hereby agrees that, not later than 15 days
after the first sale of Notes as contemplated by this Agreement, it
will file with the SEC a notice on Form D in accordance with Rule 503
under the Securities Act and that it will thereafter file such
amendments to such notice as Rule 503 may require.
(j) The Dealer hereby agrees with the Issuer not to offer or
sell any Notes in a manner that might call into question the
availability of the private offering exemption contained in Section
4(2) of the Securities Act and Rule 506 thereunder.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Except as set forth in the second paragraph of this Section 1.7(a),
Issuer hereby confirms to the Dealer that within the preceding six
months neither the Issuer nor any person other than the Dealer or the
other dealers referred to in Section 1.2 hereof acting on behalf of the
Issuer has offered or sold any Notes, or any substantially similar
security of the Issuer (including, without limitation, medium-term
notes issued by the Issuer), to, or solicited offers to buy any such
security from, any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof. The Issuer also agrees that, as long
as the Notes are being offered for sale by the Dealer and the other
dealers referred to in Section 1.2 hereof as contemplated hereby and
until at least six months after the offer of Notes hereunder has been
terminated, neither the Issuer nor any person other than the Dealer or
the other dealers referred to in Section 1.2 hereof (except as
contemplated by Section 1.2 hereof) will offer the Notes or any
substantially similar security of the Issuer for sale to, or solicit
offers to buy any such security from, any person other than the Dealer
or the other dealers referred to in Section 1.2 hereof, it being
understood that such agreement is made with a view to bringing the
offer and sale of the Notes within the exemption provided by Section
4(2) of the Securities Act and Rule 506 thereunder and shall survive
any termination of this Agreement. The Issuer hereby represents and
warrants that it has not taken or omitted to take, and will not take or
omit to take, any action that would cause the offering and sale of
Notes hereunder to be integrated with any other offering of securities,
whether such offering is made by the Issuer or some other party or
parties, and that would make unavailable the private offering exemption
contained in Section 4(2) of the Securities Act and Rule 506
thereunder, with respect to the offer and sale of Notes hereunder.
Dealer acknowledges that it has been informed by the
Issuer that Allegiance Corporation, a wholly-owned subsidiary of the
Issuer and a Delaware corporation ("Allegiance") has made offers and
sales of notes (the "Allegiance Notes"), which are substantially
similar to the Notes, during the six-month period prior to the date of
this Agreement. The offer and sale of the Allegiance Notes were made
pursuant to a commercial paper program established by Allegiance on or
about June 8, 1998. The Issuer hereby represents and warrants that the
Allegiance Notes have been offered and sold in accordance with the
procedures set forth in Section 1.6 of this Agreement.
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(b) The Issuer represents and agrees that the proceeds of the
sale of the Notes are not currently contemplated to be used for the
purpose of buying, carrying or trading securities within the meaning of
Regulation T and the interpretations thereunder by the Board of
Governors of the Federal Reserve System. In the event that the Issuer
determines to use such proceeds for the purpose of buying, carrying or
trading securities, whether in connection with an acquisition of
another company or otherwise, the Issuer shall give the Dealer at least
five business days' prior written notice to that effect. The Issuer
shall also give the Dealer prompt notice of the actual date that it
commences to purchase securities with the proceeds of the Notes.
Thereafter, in the event that the Dealer purchases Notes as principal
and does not resell such Notes on the day of such purchase, to the
extent necessary to comply with Regulation T and the interpretations
thereunder, the Dealer will sell such Notes either (i) only to offerees
it reasonably believes to be QIBs or to QIBs it reasonably believes are
acting for other QIBs, in each case in accordance with Rule 144A or
(ii) in a manner which would not cause a violation of Regulation T and
the interpretations thereunder.
Section 2. REPRESENTATIONS AND WARRANTIES OF ISSUER.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all the requisite power and authority to execute, deliver and perform its
obligations under the Notes, this Agreement and the Issuing and Paying Agency
Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have
been duly authorized, executed and delivered by the Issuer and constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law), and subject, as to
enforceability, to the qualifications set forth in the Opinion Letter referred
to in Section 3.6(a) below.
2.3 The Notes have been duly authorized, and when issued as provided in
the Issuing and Paying Agency Agreement, will be duly and validly issued and
will constitute legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law), and
subject, as to enforceability, to the qualifications set forth in the Opinion
Letter referred to in Section 3.6(a) below.
2.4 The issuance and sale of Notes under the circumstances contemplated
by this Agreement and the Issuing and Paying Agency Agreement do not require
registration of the Notes under the Securities Act, pursuant to the exemption
from registration contained in
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Section 4(2) thereof, and do not require compliance with any provision of the
Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured
and unsubordinated indebtedness of the Issuer.
2.6 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection with the Issuer's
execution, delivery or performance of, this Agreement, the Notes or the Issuing
and Paying Agency Agreement, except as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Notes.
2.7 The Issuer's execution and delivery of this Agreement and the
Issuing and Paying Agency Agreement, the Issuer's issuance and delivery of the
Notes, and the Issuer's fulfillment of or compliance with the terms and
provisions of such instruments and agreements, (a) will not violate or result in
an event of default under (i) the Issuer's articles of incorporation or code of
regulations, (ii) any agreement or instrument to which the Issuer is a party or
by which its property is bound and which is filed or incorporated by reference
as an exhibit to the Issuer's periodic reports under the Securities Exchange Act
of 1934, as amended pursuant to item 601(b)(10) of Regulation S-K of the SEC (or
any successor provision thereto) (the "Material Agreements"), or (iii) any
order, writ, injunction or decree of any court or government instrumentality to
which the Issuer is subject or by which it or its property is bound, and (b)
will not result in the creation or imposition of any mortgage, lien, charge, or
other encumbrance of any nature whatsoever upon any of the properties or assets
of the Issuer pursuant to a Material Agreement.
2.8 Except as described in the Company Information, there is no
litigation or governmental proceeding pending, or to the knowledge of the Issuer
threatened, against or affecting the Issuer or any of its subsidiaries which
would reasonably be expected to result in a material adverse change in the
condition (financial or otherwise), operations or business prospects of the
Issuer and its subsidiaries, taken as a whole, or the ability of the Issuer to
perform its obligations under the Agreement, the Notes, or the Issuing and
Paying Agency Agreement.
2.9 The Issuer is not required to register as an "investment company"
under the Investment Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum (excluding the Dealer
Information) nor the Company Information contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b)
amendment or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and
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warranties given by the Issuer set forth above in this Section 2 remain true and
correct on and as of such date as if made on and as of such date, (ii) in the
case of an issuance of Notes, the Notes being issued on such date have been duly
and validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and subject, as to enforceability, to the qualifications set forth in
the Opinion Letter referred to in Section 3.6(a) below, and (iii) in the case of
an issuance of Notes, since the date of the most recent Private Placement
Memorandum, there has been no material adverse change in the condition
(financial or otherwise), operations or business prospects of the Issuer and its
subsidiaries, taken as a whole, which has not been disclosed to the Dealer in
writing.
Section 3. COVENANTS AND AGREEMENTS OF ISSUER.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any amendment to,
modification of or waiver with respect to, the Notes or the Issuing and Paying
Agency Agreement, including a complete copy of any such amendment, modification
or waiver.
3.2 The Issuer shall, whenever there shall occur any change in the
condition (financial or otherwise), operations or business prospects of the
Issuer and its subsidiaries, taken as a whole, or any development or occurrence
in relation to the Issuer that would have a material adverse effect on holders
of the Notes or potential holders of the Notes (including any downgrading or
placement on CreditWatch or under review for potential negative change in the
rating accorded any of the Issuer's securities by any nationally recognized
statistical rating organization which has published a rating of the Notes (in
each case, as publicly released)), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer of such change,
development or occurrence.
3.3 The Issuer shall from time to time upon the reasonable request by
the Dealer furnish to the Dealer any press releases or any other publicly
available information regarding (a) the Issuer's operations and financial
condition, (b) the due authorization and execution of the Notes, and (c) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, however, that the Issuer shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
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3.5 The Issuer will not be in default in any material respect of any of
its obligations hereunder, under the Notes or under the Issuing and Paying
Agency Agreement, at any time that any of the Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
reasonably satisfactory in form and substance to the Dealer (the "Opinion
Letter"), (b) a copy of the executed Issuing and Paying Agency Agreement as then
in effect, (c) a copy of resolutions adopted by the Executive Committee of the
Board of Directors of the Issuer, satisfactory in form and substance to the
Dealer and certified by the Secretary or similar officer of the Issuer,
authorizing execution and delivery by the Issuer of this Agreement, the Issuing
and Paying Agency Agreement and the Notes and consummation by the Issuer of the
transactions contemplated hereby and thereby, (d) prior to the issuance of any
Notes represented by a book-entry note registered in the name of DTC or its
nominee, a copy of the executed Letter of Representations among the Issuer, the
Issuing and Paying Agent and DTC, and (e) such other certificates, opinions,
letters and documents as the Dealer shall have reasonably requested.
Section 4. DISCLOSURE.
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the Company
Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon the
occurrence of any event relating to or affecting the Issuer that would cause the
Company Information then in existence to include an untrue statement of a
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading. The Dealer agrees that upon such notification, all
solicitations and sales of Notes shall be suspended.
(b) In the event that the Issuer gives the Dealer notice
pursuant to Section 4.3(a) and the Dealer notifies the Issuer that it
then has Notes it is holding in inventory, the Issuer agrees promptly
to supplement or amend the Private Placement Memorandum so that the
Private Placement Memorandum, as amended or supplemented, shall not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and the Issuer shall make such supplement or amendment available to the
Dealer.
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(c) In the event that (i) the Issuer gives the Dealer notice
pursuant to Section 4.3(a), (ii) the Dealer does not notify the Issuer
that it is then holding Notes in inventory and (iii) the Issuer chooses
not to promptly amend or supplement the Private Placement Memorandum in
the manner described in clause (b) above, then all solicitations and
sales of Notes shall be suspended until such time as the Issuer has so
amended or supplemented the Private Placement Memorandum, and made such
amendment or supplement available to the Dealer.
Section 5. INDEMNIFICATION AND CONTRIBUTION.
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, fees and disbursements of counsel) or judgments of whatever kind or
nature (each a "Claim"), imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (a) any allegation that the Private
Placement Memorandum, the Company Information or any written information
provided by the Issuer to the Dealer included (as of any relevant time) or
includes an untrue statement of a material fact or omitted (as of any relevant
time) or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or (b) arising out of or based upon the breach by the Issuer of any
agreement, covenant or representation made in or pursuant to this Agreement
which has a material adverse effect on the Dealer or the holders of the Notes.
This indemnification shall not apply to the extent that the Claim arises out of
or is based upon Dealer Information or the gross negligence or willful
misconduct of the Dealer in the performance or failure to perform its
obligations under this Agreement.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the
indemnifying party shall contribute to the aggregate costs incurred by the
indemnified party in connection with any Claim in the proportion of the
respective economic interests of the Issuer and the Dealer. The respective
economic interests shall be calculated by reference to the aggregate proceeds to
the Issuer of the Notes issued hereunder and the aggregate commissions and fees
earned by the Dealer hereunder.
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Section 6. DEFINITIONS.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (a) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (b) the
Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (a) above, (c) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (d) any other information or
disclosure prepared pursuant to Section 4.3 hereof, and (e) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Dealer Information" shall mean information and other material
concerning the Dealer provided by the Dealer in writing expressly for inclusion
in the Private Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as such
on the cover page of this Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement, or any successor thereto in accordance with
the Issuing and Paying Agency Agreement.
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6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent
other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or
(b) a savings and loan association, as defined in Section 3(a)(5)(A) of the
Securities Act.
6.11 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including materials referred to therein
or incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" or "QIB" shall have the meaning
assigned to that term in Rule 144A under the Securities Act.
6.13 "Regulation D" shall mean Regulation D (Rules 501 et seq.) under
the Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.16 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
Section 7. GENERAL
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
7.3 The Issuer agrees that any suit, action or proceeding brought by
the Issuer against the Dealer in connection with or arising out of this
Agreement or the Notes or the offer and sale of the Notes shall be brought
solely in the United States federal courts located in the Borough of Manhattan
or the courts of the State of New York located in the Borough of Manhattan. EACH
OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon
one business day's prior notice to such effect to the Dealer, or by the Dealer
upon one business day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer or the
Dealer under Sections 5 and 7.3 hereof or the respective representations,
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13
warranties, agreements, covenants, rights or responsibilities of the parties
made or arising prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any affiliate of the
Dealer engaged in the business of acting as a dealer or placement agent for
commercial paper. The Dealer will notify the Issuer of any such assignment at
least 30 days before it becomes effective.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto,
and their respective permitted successors and assigns hereunder, and shall not
be deemed to give any legal or equitable right, remedy or claim to any other
person whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
CARDINAL HEALTH, INC.,
AS ISSUER
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Corporate V.P. and CFO
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Corporate V.P. and Treasurer
DEALER
By: /s/ Autorized Signature of Applicable Dealer
---------------------------------------------
Name:
Title:
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ADDENDUM
The following additional clauses shall apply to the Agreement and be
deemed a part thereof when the respective parties have placed their initials in
the left margin beside the respective paragraph number.
1. The other dealers referred to in clause (b) of Section 1.2 of the Agreement
are Xxxxxxx Xxxxx Money Markets, Inc. and Credit Suisse First Boston.
2. The addresses of the respective parties for purposes of notices under Section
7.1 are as follows:
For the Issuer: Cardinal Health, Inc.
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention:
Telephone number: (000) 000-0000
Fax number: (000) 000-0000
For the Dealer: Banc of America Securities LLC
Address: 0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Money Market Finance
Telephone number: (000) 000-0000
Fax number: (000) 000-0000
15
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW, AND OFFERS
AND SALES THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS. BY ITS ACCEPTANCE OF A NOTE, THE
PURCHASER WILL BE DEEMED TO REPRESENT THAT IT HAS BEEN AFFORDED AN
OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER AND THE
NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY
DISTRIBUTION THEREOF AND THAT IT IS EITHER (A) AN INSTITUTIONAL
INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a) UNDER THE ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") AND THAT
EITHER IS PURCHASING NOTES FOR ITS OWN ACCOUNT, IS A U.S. BANK (AS
DEFINED IN SECTION 3(a)(2) OF THE ACT) OR A SAVINGS AND LOAN
ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN SECTION 3(a)(5)(A) OF
THE ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY OR IS A
FIDUCIARY OR AGENT (OTHER THAN A U.S. BANK OR SAVINGS AND LOAN)
PURCHASING NOTES FOR ONE OR MORE ACCOUNTS EACH OF WHICH IS SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR (i) WHICH ITSELF POSSESSES SUCH
KNOWLEDGE AND EXPERIENCE OR (ii) WITH RESPECT TO WHICH SUCH PURCHASER
HAS SOLE INVESTMENT DISCRETION; OR (B) A QUALIFIED INSTITUTIONAL BUYER
("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE ACT WHICH IS
ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH
OF WHICH IS A QIB AND WITH RESPECT TO EACH OF WHICH THE PURCHASER HAS
SOLE INVESTMENT DISCRETION; AND THE PURCHASER ACKNOWLEDGES THAT IT IS
AWARE THAT THE SELLER MAY RELY UPON THE EXEMPTION FROM THE REGISTRATION
PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY RULE 144A. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF SHALL ALSO BE DEEMED TO
AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY (A)
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1) TO
THE ISSUER OR TO BANC OF AMERICA SECURITIES LLC OR ANOTHER PERSON
DESIGNATED BY THE ISSUER AS A PLACEMENT AGENT FOR THE NOTES
(COLLECTIVELY, THE "PLACEMENT AGENTS"), NONE OF WHICH SHALL HAVE ANY
OBLIGATION TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT AGENT TO AN
INSTITUTIONAL ACCREDITED INVESTOR OR A QIB, OR (3) TO A QIB IN A
TRANSACTION THAT MEETS THE REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM
AMOUNTS OF $250,000.
16
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of internal and external counsel)
as they are incurred by it in connection with investigating or defending any
Claim in respect of which indemnification may be sought under Section 5 of the
Agreement (whether or not it is a party to any such proceedings) ; provided,
however, that if it is found in any such action, proceeding or investigation
that any loss, claim, damage or liability of an Indemnitee has resulted from the
Dealer Information or the gross negligence or bad faith of the Indemnitee in
performing the services that are the subject of this Agreement, the Indemnitee
shall repay such portion of the reimbursed amounts that is attributable to
expenses incurred in relation to the act or omission of the Indemnitee which is
the subject of such finding.
(b) Promptly after receipt by an Indemnitee of notice of the existence
of a Claim, such Indemnitee will, if a claim in respect thereof is to be made
against the indemnifying party, promptly notify the indemnifying party in
writing of the existence thereof; provided that (i) the omission so to notify
the indemnifying party will not relieve the indemnifying party from any
liability which it may have hereunder unless and except to the extent it did not
otherwise learn of such Claim and such failure results in the forfeiture by the
indemnifying party of rights and defenses, and (ii) the omission so to notify
the indemnifying party will not relieve it from liability which it may have to
an Indemnitee otherwise than on account of this indemnity agreement. In case any
such Claim is made against any Indemnitee and it notifies the indemnifying party
of the existence thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
Indemnitee, to assume the defense thereof, with counsel reasonably satisfactory
to such Indemnitee; provided that if the defendants in any such Claim include
both the Indemnitee and the indemnifying party, and the Indemnitee shall have
concluded that there may be legal defenses available to it which are different
from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such Claim
on behalf of such Indemnitee, and the Indemnitee shall have the right to select
separate counsel to assert such legal defenses on behalf of such Indemnitee.
Upon receipt of notice from the indemnifying party to such Indemnitee of the
indemnifying party's election so to assume the defense of such Claim and
approval by the Indemnitee of counsel, the indemnifying party will not be liable
to such Indemnitee for expenses incurred thereafter by the Indemnitee in
connection with the defense thereof (other than reasonable costs of
investigation) unless (i) the Indemnitee shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel in the jurisdiction in which
any Claim is brought),
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approved by the indemnifying party, representing the Indemnitee who is party to
such Claim) or (ii) the indemnifying party has authorized in writing the
employment of counsel for the Indemnitee. The indemnity, reimbursement and
contribution obligations of the indemnifying party hereunder shall be in
addition to any other liability the indemnifying party may otherwise have to an
Indemnitee and shall be binding upon and inure to the benefit of any successors,
assigns, heirs and personal representatives of the indemnifying party and any
Indemnitee.
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