TAX MATTERS AGREEMENT

Exhibit 10.3

TAX MATTERS AGREEMENT

by and between

Cardinal Health Inc.

and

CareFusion Corporation

Dated as of August 31, 2009

TAX MATTERS AGREEMENT

THIS TAX MATTERS AGREEMENT (this “ Agreement ”), dated as of August 31, 2009, is by and between Cardinal Health Inc., an Ohio corporation (“ Cardinal Health ”), and CareFusion Corporation, a Delaware corporation (“ CareFusion ”). Each of Cardinal Health and CareFusion is sometimes referred to herein as a “ Party ” and, collectively, as the “ Parties .”

WHEREAS, Cardinal Health, through its various subsidiaries, is engaged in the Cardinal Health Business and the CareFusion Business;

WHEREAS, the board of directors of Cardinal Health has determined that it is in the best interests of Cardinal Health and its shareholders to create a new publicly traded company which shall operate the CareFusion Business;

WHEREAS, Cardinal Health and CareFusion have entered into the Separation Agreement pursuant to which (i) Cardinal Health will, and will cause its Subsidiaries to, transfer certain assets, liabilities, subsidiaries and businesses of Cardinal Health and its Subsidiaries to CareFusion and its Subsidiaries, as a result of which CareFusion will own, directly and through its subsidiaries, the CareFusion Business (the “ Restructuring ”), and (ii) Cardinal Health will distribute at least 80% of the stock of CareFusion to its shareholders (the “ Distribution ”) as described therein;

WHEREAS, prior to consummation of the Restructuring and the Distribution, Cardinal Health was the common parent corporation of an affiliated group of corporations within the meaning of Section 1504 of the Code;

WHEREAS, the Parties intend that, for U.S. federal income Tax purposes, certain steps of the Restructuring and the Distribution shall qualify as tax-free transactions pursuant to Sections 332, 351, 355, 361(c), 368(a) and related provisions of the Code; and

WHEREAS, the Parties wish to (a) provide for the payment of Tax liabilities and entitlement to refunds thereof, allocate responsibility for, and cooperation in, the filing of Tax Returns, and provide for certain other matters relating to Taxes, and (b) set forth certain covenants and indemnities relating to the preservation of the tax-free status of certain steps of the Restructuring and the Distribution.

NOW, THEREFORE, in consideration of the foregoing and the terms, conditions, covenants and provisions of this Agreement, each of the Parties mutually covenants and agrees as follows:

ARTICLE I

DEFINITIONS

Section 1.01. General . As used in this Agreement, the following terms shall have the following meanings:

“ Accounting Firm ” has the meaning set forth in Section 8.01(b).

“ Adjustment ” means any change in the Tax liability of a taxpayer, determined issue-by-issue or transaction-by-transaction, as the case may be.

“ Agreement ” has the meaning set forth in the preamble to this Agreement.

“ Benefited Party ” has the meaning set forth in Section 4.01(b) of this Agreement.

“ Cardinal Health ” has the meaning set forth in the preamble to this Agreement.

“ Cardinal Health Business ” has the meaning set forth in the Separation Agreement.

“ Cardinal Health Consolidated Return ” means the U.S. federal Income Tax Return required to be filed by Cardinal Health as the Common Parent.

“ Cardinal Health Disqualifying Action ” means (i) any action (or the failure to take any action) within its control by Cardinal Health or any Cardinal Health Entity (including entering into any agreement, understanding or arrangement or any negotiations with respect to any transaction or series of transactions) that, (ii) any event (or series of events) involving the capital stock of Cardinal Health, any assets of Cardinal Health or any assets of any Cardinal Health Entity that, or (iii) any breach by Cardinal Health or any Cardinal Health Entity of any representation, warranty or covenant made by them in this Agreement that, in each case, would negate the Tax-Free Status of the Transactions; provided , however , the term “ Cardinal Health Disqualifying Action ” shall not include any action described in the Separation Agreement or any Transaction Document or that is undertaken pursuant to the Restructuring or the Distribution.

“ Cardinal Health Entity ” means any Subsidiary of Cardinal Health immediately after the Effective Time.

“ Cardinal Health Group ” means, individually or collectively, as the case may be, Cardinal Health and any Cardinal Health Entity.

“ Cardinal Health Indemnified Parties ” has the meaning set forth in the Separation Agreement.

“ Cardinal Health Taxes ” means any Taxes of Cardinal Health or any Subsidiary or former Subsidiary of Cardinal Health for any Pre-Closing Period and, with respect to a Straddle Period, the portion of such period ending on the Closing Date (determined in accordance with Section 2.05), in each case other than CareFusion Taxes.

 

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“ CareFusion ” has the meaning set forth in the preamble to this Agreement.

“ CareFusion Business ” has the meaning set forth in the Separation Agreement.

“ CareFusion Disqualifying Action ” means (i) any action (or the failure to take any action) within its control by CareFusion or any CareFusion Entity (including entering into any agreement, understanding or arrangement or any negotiations with respect to any transaction or series of transactions) that, (ii) any event (or series of events) involving the capital stock of CareFusion, any assets of CareFusion or any assets of any CareFusion Entity that, or (iii) any breach by CareFusion or any CareFusion Entity of any representation, warranty or covenant made by them in this Agreement that, in each case, would negate the Tax-Free Status of the Transactions; provided , however , the term “ CareFusion Disqualifying Action ” shall not include any action described in the Separation Agreement or any Transaction Document or that is undertaken pursuant to the Restructuring or the Distribution.

“ CareFusion Entity ” means any Subsidiary of CareFusion immediately after the Effective Time.

“ CareFusion Group ” means, individually or collectively, as the case may be, CareFusion and any CareFusion Entity.

“ CareFusion Indemnified Parties ” has the meaning set forth in the Separation Agreement.

“ CareFusion Taxes ” means, without duplication, (i) any Taxes attributable solely to, or arising solely with respect to, assets or activities of the CareFusion Business (excluding, (x) any Restructuring/Distribution Taxes, (y) any Mixed Business Income Taxes, other than in respect of a Mixed Business Income Tax Return of a Shanghai Entity, (z) any Taxes to the extent payable by Cardinal Health pursuant to Section 2.01(a)), (ii) the CareFusion Liability Percentage (as such term is defined in the Separation Agreement) of any Restructuring/Distribution Taxes, (iii) any Taxes attributable to a CareFusion Disqualifying Action, (iv) any Taxes attributable to the items listed in Schedule 1.01, (v) any Corresponding State Taxes, (vi) any Mixed Business Income Taxes for the post-closing portion of a Straddle Period in respect of a Mixed Business Tax Return governed by Section 2.02(a)(ii) and (vii) any Shanghai Taxes. For the avoidance of doubt, CareFusion Taxes shall not include any Taxes attributable to a Cardinal Health Disqualifying Action.

“ Closing Date ” means the date on which the Distribution occurs.

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.

“ Common Parent ” means (i) for U.S. federal Income Tax purposes, the “common parent corporation” of an “affiliated group” (in each case, within the meaning of Section 1504 of the Code) filing a U.S. federal consolidated Income Tax Return, or (ii) for state, local or foreign income Tax purposes, the common parent (or the equivalent thereof) of a Tax Group.

 

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“ Corresponding State Taxes ” means the product of (i) any Final Determination with respect to any Cardinal Health Consolidated Return giving rise to Taxes described in clauses (i) through (iv) of the definition of CareFusion Taxes multiplied by (ii) 2%.

“ Counsels ” means Weil, Gotshal & Manges LLP and Wachtell, Lipton, Rosen & Katz.

“ Disqualifying Action ” means a Cardinal Health Disqualifying Action or a CareFusion Disqualifying Action.

“ Distribution ” has the meaning set forth in the preamble to this Agreement.

“ Due Date ” means (i) with respect to a Tax Return, the date (taking into account all valid extensions) on which such Tax Return is required to be filed under applicable Law and (ii) with respect to a payment of Taxes, the date on which such payment is required to be made to avoid the incurrence of interest, penalties and/or additions to Tax.

“ Effective Time ” has the meaning set forth in the Separation Agreement.

“ Employee Matters Agreement ” means the Employee Matters Agreement by and between the Parties dated as of August 31, 2009.

“ Extraordinary Transaction ” means any action that is not in the Ordinary Course of Business, but shall not include any action described in the Separation Agreement or any Transaction Document or that is undertaken pursuant to the Restructuring or the Distribution.

“ Fifty-Percent or Greater Interest ” has the meaning ascribed to such term for purposes of Sections 355(d) and (e) of the Code.

“ Final Determination ” means the final resolution of liability for any Tax for any taxable period, by or as a result of (i) a final decision, judgment, decree or other order by any court of competent jurisdiction that can no longer be appealed; (ii) a final settlement with the IRS, a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the Laws of other jurisdictions, which resolves the entire Tax liability for any taxable period; (iii) any allowance of a refund or credit in respect of an overpayment of Tax, but only after the expiration of all periods during which such refund or credit may be recovered by the jurisdiction imposing the Tax; or (iv) any other final resolution, including by reason of the expiration of the applicable statute of limitations or the execution of a pre-filing agreement with the IRS or other Taxing Authority.

“ Income Tax Return ” means any Tax Return relating to Income Taxes.

“ Income Taxes ” means any Taxes based upon, measured by, or calculated with respect to: (A) net income or profits or net receipts (including, but not limited to, any capital gains, minimum Tax or any Tax on items of Tax preference, but not including sales, use, real or personal property, or transfer or similar Taxes) or (B) multiple bases (including corporate franchise, doing business and occupation Taxes) if one or more bases upon which such Tax may be based, measured by, or calculated with respect to, is described in clause (A).

 

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“ Indemnifying Party ” means the Party from which the other Party is entitled to seek indemnification pursuant to the provisions of Article III.

“ Indemnified Party ” means the Party which is entitled to seek indemnification from the other Party pursuant to the provisions of Article III.

“ Independent Firm ” has the meaning set forth in Schedule 7.01(b).

“ Information ” has the meaning set forth in Section 7.01(a).

“ Information Request ” has the meaning set forth in Section 7.01(a).

“ IRS ” means the U.S. Internal Revenue Service or any successor thereto, including, but not limited to its agents, representatives, and attorneys.

“ IRS Ruling ” means the U.S. federal income Tax ruling, and any supplements thereto, issued to Cardinal Health by the IRS in connection with the Restructuring and the Distribution.

“ Law ” means any U.S. or non-U.S. federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, administrative pronouncement, order, requirement or rule of law (including common law).

“ Mixed Business Income Taxes ” means any U.S. federal, state or local, or foreign Income Taxes attributable to any Mixed Business Income Tax Return.

“ Mixed Business Income Tax Return ” means any Income Tax Return (other than a Cardinal Health Consolidated Return), including any consolidated, combined or unitary Income Tax Return, that relates to at least one asset or activity that is part of the Cardinal Health Business, on the one hand, and at least one asset or activity that is part of the CareFusion Business, on the other hand.

“ Mixed Business Non-Income Tax Return ” means any Non-Income Tax Return that relates to at least one asset or activity that is part of the Cardinal Health Business, on the one hand, and at least one asset or activity that is part of the CareFusion Business, on the other hand.

“ Non-Income Tax Return ” means any Tax Return relating to Taxes other than Income Taxes.

“ Notified Action ” has the meaning set forth in Section 6.03(a).

“ Officer’s Certificate ” has the meaning set forth in Schedule 7.01(b).

“ Opinions ” means the opinions of Counsels with respect to certain Tax aspects of the Restructuring and the Distribution.

“ Ordinary Course of Business ” means an action taken by a Person only if such action is taken in the ordinary course of the normal day-to-day operations of such Person.

 

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“ Party ” has the meaning set forth in the preamble to this Agreement.

“ Past Practice ” has the meaning set forth in Section 2.04(a)(i).

“ Person ” has the meaning set forth in the Separation Agreement.

“ Pre-Closing Period ” means any taxable period (or portion thereof) ending on or before the Closing Date.

“ Post-Closing Period ” means any taxable period (or portion thereof) beginning after the Closing Date.

“ Proposed Acquisition Transaction ” means a transaction or series of transactions (or any agreement, understanding or arrangement, within the meaning of Section 355(e) of the Code and Treasury Regulation Section 1.355-7, or any other regulations promulgated thereunder, to enter into a transaction or series of transactions), whether such transaction is supported by CareFusion management or shareholders, is a hostile acquisition, or otherwise, as a result of which CareFusion would merge or consolidate with any other Person or as a result of which one or more Persons would (directly or indirectly) acquire, or have the right to acquire, from CareFusion and/or one or more holders of outstanding shares of CareFusion capital stock, as the case may be, a number of shares of CareFusion capital stock that would, when combined with any other changes in ownership of CareFusion capital stock pertinent for purposes of Section 355(e) of the Code, comprise 40% or more of (A) the value of all outstanding shares of stock of CareFusion as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series, or (B) the total combined voting power of all outstanding shares of voting stock of CareFusion as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series. Notwithstanding the foregoing, a Proposed Acquisition Transaction shall not include (A) the adoption by CareFusion of a shareholder rights plan or (B) issuances by CareFusion that satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulation Section 1.355-7(d). For purposes of determining whether a transaction constitutes an indirect acquisition, any recapitalization resulting in a shift of voting power or any redemption of shares of stock shall be treated as an indirect acquisition of shares of stock by the non-exchanging shareholders. This definition and the application thereof is intended to monitor compliance with Section 355(e) of the Code and shall be interpreted accordingly. Any clarification of, or change in, the statute or regulations promulgated under Section 355(e) of the Code shall be incorporated in this definition and its interpretation.

“ Refund ” means any refund (or credit in lieu thereof) of Taxes (including any overpayment of Taxes that can be refunded or, alternatively, applied to other Taxes payable), including any interest paid on or with respect to such refund of Taxes, provided, however, that for purposes of this Agreement, the amount of any Refund required to be paid to another Party shall be reduced by the net amount of any Income Taxes imposed on, related to, or attributable to, the receipt or accrual of such Refund.

“ Representative ” has the meaning set forth in Schedule 7.01(b).

 

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“ Response Deadline ” has the meaning set forth in Schedule 7.01(b).

“ Restriction Period ” has the meaning set forth in Section 6.02(b).

“ Restructuring ” has the meaning set forth in the preamble to this Agreement.

“ Restructuring/Distribution Taxes ” means any Taxes imposed on or by reason of the Restructuring or the Distribution (including Transfer Taxes), other than any such Taxes caused by a Disqualifying Action. For the avoidance of doubt, Restructuring/Distribution Taxes include Taxes by reason of deferred intercompany transactions triggered by the Restructuring or the Distribution.

“ Reviewing Party ” has the meaning set forth in Section 2.05.

“ SAG ” has the meaning ascribed to the term “separate affiliated group” in Section 355(b)(3)(B) of the Code.

“ Section 6.02(d) Acquisition Transaction ” means any transaction or series of transactions that is not a Proposed Acquisition Transaction but would be a Proposed Acquisition Transaction if the percentage reflected in the definition of Proposed Acquisition Transaction were 25% instead of 40%.

“ Separation Agreement ” means the Separation Agreement by and between the Parties dated as of July 20, 2009.

“ Shanghai Entity ” means Cardinal Health Trading (Shanghai) Co. Ltd and Cardinal Health Commercial & Trading (Shanghai) Co. Ltd.

“ Shanghai Taxes ” means any Taxes of a Shanghai Entity.

“ Single Business Return ” means any Tax Return including any consolidated, combined or unitary Tax Return, that includes assets or activities relating only to the Cardinal Health Business, on the one hand, or the CareFusion Business, on the other (but not both), whether or not the Person charged by Law to file such Tax Return is engaged in the business to which the Tax Return relates.

“ Spin-off Entities ” means CareFusion and each of DAM, CMP 201, CMP 200, CH Solutions and CH 303 (as such terms are defined in the submissions to the IRS in connection with the IRS Ruling).

“ Straddle Period ” means any taxable period that begins on or before and ends after the Closing Date.

“ Subsidiary ” has the meaning set forth in the Separation Agreement.

“ Tax ” means (i) all taxes, charges, fees, duties, levies, imposts, or other similar assessments, imposed by any U.S. federal, state or local or foreign governmental authority, including, but not limited to, income, gross receipts, excise, property, sales, use, license, capital

 

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stock, transfer, franchise, payroll, withholding, social security, value added and other taxes, (ii) any interest, penalties or additions attributable thereto and (iii) all liabilities in respect of any items described in clauses (i) or (ii) payable by reason of assumption, transferee or successor liability, operation of Law or Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision under Law).

“ Tax Attributes ” means net operating losses, capital losses, earnings and profits, overall foreign losses, previously taxed income, separate limitation losses and all other Tax attributes.

“ Tax-Free Status of the Transactions ” means the tax-free treatment accorded to certain of the transactions taken in connection with the Restructuring and the Distribution as set forth in the IRS Ruling and the Opinions.

“ Tax Group ” means any U.S. federal, state, local or foreign affiliated, consolidated, combined, unitary or similar group or fiscal unity that joins in the filing of a single Tax Return.

“ Taxing Authority ” means any governmental authority or any subdivision, agency, commission or entity thereof or any quasi-governmental or private body having jurisdiction over the assessment, determination, collection or imposition of any Tax (including the IRS).

“ Tax Materials ” has the meaning set forth in Section 6.01(a).

“ Tax Matter ” has the meaning set forth in Section 7.01(a).

“ Tax Package ” means all relevant Tax-related information relating to the operations of the Cardinal Health Business or the CareFusion Business, as applicable, that is reasonably necessary to prepare and file the applicable Tax Return.

“ Tax Proceeding ” means any audit, assessment of Taxes, pre-filing agreement, other examination by any Taxing Authority, proceeding, appeal of a proceeding or litigation relating to Taxes, whether administrative or judicial, including proceedings relating to competent authority determinations.

“ Tax Return ” means any return, report, certificate, form or similar statement or document (including any related or supporting information or schedule attached thereto and any information return, or declaration of estimated Tax) required to be supplied to, or filed with, a Taxing Authority in connection with the payment, determination, assessment or collection of any Tax or the administration of any Laws relating to any Tax and any amended Tax return or claim for refund.

“ Transaction Documents ” has the meaning set forth in the Separation Agreement.

“ Transfer Taxes ” means all sales, use, transfer, real property transfer, intangible, recordation, registration, documentary, stamp or similar Taxes imposed on the Restructuring or the Distribution.

 

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“ Treasury Regulations ” means the final and temporary (but not proposed) income Tax regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“ Unqualified Tax Opinion ” means a “will” opinion, without substantive qualifications, of a nationally recognized law firm, which law firm is reasonably acceptable to Cardinal Health, to the effect that a transaction will not affect the Tax-Free Status of the Transactions.

“ U.S. ” means the United States of America.

Section 1.02. Additional Definitions .

(a) Capitalized terms not defined in this Agreement shall have the meaning ascribed to them in the Separation Agreement.

ARTICLE II

PREPARATION, FILING AND PAYMENT OF TAXES SHOWN DUE ON TAX RETURNS

Section 2.01. Cardinal Health Consolidated Returns .

(a) General . Cardinal Health shall prepare and file all Cardinal Health Consolidated Returns for a Pre-Closing Period or a Straddle Period, shall pay all Taxes and shall be entitled to all Refunds shown to be due and payable on such Tax Returns.

(b) Extraordinary Transactions . Notwithstanding anything to the contrary in this Agreement, for all Tax purposes, the Parties shall report any Extraordinary Transactions that are caused or permitted by CareFusion or any CareFusion Entity on the Closing Date after the Effective Time as occurring on the day after the Closing Date pursuant to Treasury Regulation Section 1.1502-76(b)(1)(ii)(B) or any similar or analogous provision of state, local or foreign Law. Cardinal Health shall not make a ratable allocation election pursuant to Treasury Regulation Section 1.1502-76(b)(2)(ii)(D) or any similar or analogous provision of state, local or foreign Law.

Section 2.02. Mixed Business Returns .

(a) Mixed Business Income Tax Returns .

(i) Cardinal Health shall prepare and file (or cause a Cardinal Health Entity to prepare and file) any Mixed Business Income Tax Return for a Pre-Closing Period or a Straddle Period required to be filed by Cardinal Health or a Cardinal Health Entity and shall pay, or cause such Cardinal Health Entity to pay, all Taxes and shall be entitled to all Refunds shown to be due and payable on such Tax Return.

(ii) Except as otherwise provided in Section 2.02(a)(iii), Cardinal Health shall prepare (or cause a Cardinal Health Entity to prepare), and CareFusion shall file (or

 

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cause a CareFusion Entity to file), any Mixed Business Income Tax Return for a Pre-Closing Period or a Straddle Period required to be filed by CareFusion or a CareFusion Entity and CareFusion shall pay, or cause such CareFusion Entity to pay, all Taxes and shall be entitled to all Refunds shown to be due and payable on such Tax Return, provided that (x) in the case of a Tax Return for a Pre-Closing Period, Cardinal Health shall reimburse CareFusion for all such Taxes and CareFusion shall reimburse Cardinal Health for all such Refunds, as the case may be and (y) in the case of a Tax Return for a Straddle Period, Cardinal Health shall reimburse CareFusion or CareFusion shall reimburse Cardinal Health, as applicable, for the amount of Tax or Refund, as applicable, that would have been shown as due and payable if such Straddle Period had ended on the Closing Date, determined in the manner set forth in Section 2.05 (for the avoidance of doubt taking into account those payments (if any) of Taxes with respect to such Tax Return made on or prior to the Closing Date).

(iii) CareFusion shall prepare and file (or cause a CareFusion Entity to prepare and file) any Mixed Business Income Tax Return for a Pre-Closing Period or a Straddle Period required to be filed by a Shanghai Entity and shall pay, or cause such CareFusion Entity to pay, all Taxes and shall be entitled to all Refunds shown to be due and payable on such Tax Return.

(b) Mixed Business Non-Income Tax Returns . Cardinal Health shall prepare and file (or cause a Cardinal Health Entity to prepare and file) any Mixed Business Non-Income Tax Return for a Pre-Closing Period or a Straddle Period required to be filed by Cardinal Health or a Cardinal Health Entity and shall pay, or cause such Cardinal Health Entity to pay, all Taxes shown to be due and payable on such Tax Return, provided that CareFusion shall reimburse Cardinal Health for any such Taxes that are CareFusion Taxes. CareFusion shall prepare and file (or cause a CareFusion Entity to prepare and file) any Mixed Business Non-Income Tax Return for a Pre-Closing Period or a Straddle Period required to be filed by CareFusion or a CareFusion Entity and shall pay, or cause such CareFusion Entity to pay, all Taxes shown to be due and payable on such Tax Return, provided that Cardinal Health shall reimburse CareFusion for any such Taxes that are Cardinal Health Taxes.

Section 2.03. Single Business Returns . Cardinal Health shall prepare and file (or cause a Cardinal Health Entity to prepare and file) any Single Business Return for a Pre-Closing Period or a Straddle Period required to be filed by Cardinal Health or a Cardinal Health Entity and shall pay, or cause such Cardinal Health Entity to pay, all Taxes and shall be entitled to all Refunds shown to be due and payable on such Tax Return, provided that CareFusion shall reimburse Cardinal Health for any such Taxes that are CareFusion Taxes and Cardinal Health shall reimburse CareFusion for any such Refunds of CareFusion Taxes. CareFusion shall prepare and file (or cause a CareFusion Entity to prepare and file) any Single Business Return for a Pre-Closing Period or a Straddle Period required to be filed by CareFusion or a CareFusion Entity and shall pay, or cause such CareFusion Entity to pay, all Taxes and shall be entitled to all Refunds shown to be due and payable on such Tax Return, provided that Cardinal Health shall reimburse CareFusion for any such Taxes that are Cardinal Health Taxes and CareFusion shall reimburse Cardinal Health for any such Refunds of Cardinal Health Taxes.

 

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Section 2.04. Tax Return Procedures .

(a) Procedures relating to Cardinal Health Consolidated Returns and Mixed Business Income Tax Returns .

(i) In connection with the preparation of any Tax Return pursuant to Sections 2.01 or 2.02(a)(i) or (ii), CareFusion will assist and cooperate with Cardinal Health by preparing and providing to Cardinal Health proforma Tax Returns for CareFusion and any CareFusion Entity to be included in such Cardinal Health Consolidated Return or equivalent financial data to be used in the preparation of a Mixed Business Income Tax Return, as applicable, in a manner consistent with Schedule 2.04. Proforma Tax Returns shall be prepared in accordance with past practices, accounting methods, elections and conventions (“ Past Practice ”), unless otherwise required by Law or agreed to in writing by Cardinal Health. At its option, Cardinal Health may engage an accounting firm of its choice to review the proforma Tax Return, supporting documentation, and statements submitted by CareFusion and in connection therewith, shall determine whether such Tax Return was prepared in accordance with Past Practice. Prior to engaging such accounting firm, Cardinal Health shall provide the suggested scope for such accounting review to CareFusion for review and discussion. All costs and expenses associated with such review will be borne by CareFusion upon receipt of invoices detailing the work performed by such accounting firm.

(ii) Cardinal Health shall prepare all Cardinal Health Consolidated Returns and Mixed Business Income Tax Returns consistent with Past Practice unless otherwise required by Law or agreed to in writing by CareFusion. In the event that Past Practice is not applicable to a particular item or matter, Cardinal Health shall determine the reporting of such item or matter provided that such reporting is more likely than not to be sustained and provided further that Cardinal Health and CareFusion shall agree as to the reporting of any such item or matter which is not more likely than not to be sustained. Cardinal Health shall deliver to CareFusion for its review a draft of such Cardinal Health Consolidated Return or Mixed Business Income Tax Return (or to the extent practicable the portion of such Tax Return that relates to CareFusion Taxes) as provided in Schedule 2.04. The Parties shall negotiate in good faith to resolve all disputed issues.

(b) Procedures relating to Mixed Business Non-Income Tax Return and Single Business Returns . The Party that is required to prepare and file any Tax Return pursuant to Sections 2.02(b) or 2.03 (the “ Preparing Party ”) which reflects Taxes which are reimbursable by the other Party (the “ Reviewing Party ”), in whole or in part, shall (x) unless otherwise required by Law or agreed to in writing by the Reviewing Party, prepare such Tax Return in a manner consistent with Past Practice to the extent such items affect the Taxes for which the Reviewing Party is responsible pursuant to this Agreement, and (y) submit to the Reviewing Party a draft of any such Tax Return (or to the extent practicable the portion of such Tax Return that relates to Taxes for which the Reviewing Party is responsible pursuant to this Agreement) along with a statement setting forth the calculation of the Tax shown due and payable on such Tax Return reimbursable by the Reviewing Party under Sections 2.02(b) or 2.03. The Parties shall negotiate in good faith to resolve all disputed issues.

 

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Section 2.05. Straddle Period Tax Allocation . For U.S. federal Income Tax purposes, the taxable year of CareFusion and each CareFusion Entity that was a member of the affiliated group of corporations of which Cardinal Health was the Common Parent shall end as of the close of the Closing Date. Cardinal Health and CareFusion shall take all actions necessary or appropriate to close the taxable year of CareFusion and each CareFusion Entity for all other Tax purposes as of the close of the Closing Date to the extent required by applicable Law. If applicable Law does not require CareFusion or a CareFusion Entity, as the case may be, to close its taxable year on the Closing Date, then the allocation of income or deductions required to determine any Taxes or other amounts attributable to the portion of the Straddle Period ending on, or beginning after, the Closing Date shall be made by means of a closing of the books and records of CareFusion or such CareFusion Entity as of the close of the Closing Date; provided that exemptions, allowances or deductions that are calculated on an annual or periodic basis shall be allocated between such portions in propo