Exhibit 4.2
REGISTRATION RIGHTS
AGREEMENT
by and among
Cardinal Health,
Inc.
and
Banc of America Securities
LLC
J.P. Morgan Securities
Inc.
Goldman, Sachs &
Co.
Dated as of October 3,
2006
REGISTRATION RIGHTS
AGREEMENT
This Registration Rights Agreement
(this “ Agreement ”) is made and entered into as
of October 3, 2006, by and among Cardinal Health, Inc., an
Ohio corporation (the “ Company ”), and Banc of
America Securities LLC, J.P. Morgan Securities Inc., Goldman,
Sachs & Co. and other initial purchasers (collectively,
the “ Initial Purchasers ”), each of whom has
agreed to purchase the Company’s Floating Rate Notes due 2009
(the “ 2009 Notes ”) and the Company’s
5.80% Notes due 2016 (the “ 2016 Notes ”, and
together with the 2009 Notes, the “ Initial Securities
”) pursuant to the Purchase Agreement (as defined
below).
This Agreement is made pursuant to
the Purchase Agreement, dated September 28, 2006 (the “
Purchase Agreement ”), among the Company and the
Initial Purchasers (i) for the benefit of the Initial
Purchasers and (ii) for the benefit of the holders from time
to time of the Initial Securities, including the Initial
Purchasers. In order to induce the Initial Purchasers to purchase
the Initial Securities, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the
Initial Purchasers set forth in Section 5(h) of the Purchase
Agreement.
The parties hereby agree as
follows:
S ECTION 1. Definitions . As used in this
Agreement, the following capitalized terms shall have the following
meanings:
Additional Interest Payment
Date : With respect to
the Initial Securities, each Interest Payment Date.
Affiliate : Of any specified Person shall mean any other
Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common
control with, such specified Person. For purposes of this
definition, control of a Person shall mean the possession, direct
or indirect, of the power to direct or cause the direction of the
management and policies of such Person, whether through the
ownership of voting securities by contract or otherwise; and the
terms “controlling” and “controlled” shall
have the meanings correlative to the foregoing.
Broker-Dealer
: Any broker or dealer registered
under the Exchange Act.
Business Day
: Any day other than a Saturday,
Sunday or U.S. federal holiday or a day on which banking
institutions or trust companies located in New York, New York are
authorized or obligated to be closed.
Closing Date
: The date of this
Agreement.
Commission
: The Securities and Exchange
Commission.
Consummate
: A registered Exchange Offer shall
be deemed “Consummated” for purposes of this Agreement
upon the occurrence of (i) the filing and effectiveness under
the Securities Act of the Exchange Offer Registration Statement
relating to the Exchange Securities to be issued in the Exchange
Offer, (ii) the maintenance of such Registration
Statement
continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the
delivery by the Company to the Registrar under the Indenture of
Exchange Securities in the same aggregate principal amount as the
aggregate principal amount of Initial Securities that were tendered
by Holders thereof pursuant to the Exchange Offer.
Exchange Act
: The Securities Exchange Act of
1934, as amended.
Exchange Offer
: The registration by the Company
under the Securities Act of the issuance and exchange of Exchange
Securities pursuant to a Registration Statement pursuant to which
the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such
outstanding Transfer Restricted Securities held by such Holders for
Exchange Securities in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration
Statement : The
Registration Statement relating to the Exchange Offer, including
the related Prospectus.
Exchange Securities
: The Floating Rate Notes due 2009
and the 5.80% Notes due 2016, each of the same series under the
Indenture as the Initial Securities, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this
Agreement.
Exempt Resales
: The transactions in which the
Initial Purchasers propose to sell the Initial Securities to
certain “qualified institutional buyers,” as such term
is defined in Rule 144A under the Securities Act, and to certain
non-U.S. persons pursuant to Regulation S under the Securities
Act.
Holders : As defined in Section 2(b)
hereof.
Indemnified Holder
: As defined in Section 8(a)
hereof.
Indenture : The Indenture, dated as of April 18,
1997, between the Company and The Bank of New York Trust Company,
N.A., (successor to J.P. Morgan Trust Company, National
Association, successor to Bank One, N.A., which was formerly known
as Bank One, Columbus, N.A.), as trustee (the “
Trustee ”) as supplemented by the First Supplemental
Indenture dated as of October 3, 2006, pursuant to which the
Securities are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms
thereof.
Initial Placement
: The issuance and sale by the
Company of the Initial Securities to the Initial Purchasers
pursuant to the Purchase Agreement.
Initial Purchaser
: As defined in the preamble
hereto.
Initial Securities
: As defined in the preamble
hereto.
Interest Payment Date
: When used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security as the fixed
date
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on which such principal of such Security or such
installment of principal or interest is due and payable.
NASD : National Association of Securities Dealers
Inc.
Person : An individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus
: The prospectus included in a
Registration Statement, as amended or supplemented by any
prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated
by reference into such Prospectus.
Registration Default
: As defined in Section 5
hereof.
Registration Statement
: Any registration statement of the
Company relating to (a) an offering of Exchange Securities
pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which is filed pursuant to the provisions
of this Agreement, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities
: The Initial Securities and the
Exchange Securities.
Securities Act
: The Securities Act of 1933, as
amended.
Shelf Filing Deadline
: As defined in Section 4(a)
hereof.
Shelf Registration
Statement : As defined in
Section 4(a) hereof.
Trust Indenture Act
: The Trust Indenture Act of 1939,
as amended.
Transfer Restricted
Securities : Each Initial
Security, until the earliest to occur of (a) the date on which
such Initial Security is (i) exchanged in the Exchange Offer
for an Exchange Security entitled to be resold to the public by the
Holder thereof without complying with the prospectus delivery
requirements of the Securities Act or (ii) sold by a
Broker-Dealer pursuant to the “Plan of Distribution”
contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein),
(b) the date on which such Initial Security has been
effectively registered under the Securities Act and disposed of
pursuant to and in accordance with a Shelf Registration Statement
and (c) the date on which such Initial Security is distributed
to the public pursuant to Rule 144 or eligible to be sold pursuant
to Rule 144(k) under the Securities Act or by a Broker-Dealer
pursuant to the “Plan of Distribution” contemplated by
the Exchange Offer Registration Statement (including the delivery
of the Prospectus therein).
Underwritten Registration or
Underwritten Offering : A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
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S ECTION 2. Securities Subject to this
Agreement.
(a) Transfer Restricted
Securities. The securities entitled to the benefits of this
Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer
Restricted Securities. A Person is deemed to be a holder of
Transfer Restricted Securities (each, a “ Holder
”) whenever such Person owns Transfer Restricted
Securities.
S ECTION 3. Registered Exchange
Offer.
(a) Unless the Exchange Offer shall
not be permissible under applicable law or Commission policy (after
the procedures set forth in Section 6(a) hereof have been
complied with), the Company shall (i) use reasonable best
efforts to prepare and cause to be filed with the Commission a
Registration Statement under the Securities Act relating to the
Exchange Securities and the Exchange Offer and use its reasonable
best efforts to cause such Registration Statement to become
effective at the earliest practicable time, but in no event later
than 240 days after the Closing Date (or if such 240th day is not a
Business Day, the next succeeding Business Day), (ii) in
connection with the foregoing, use its reasonable best efforts to
file (A) all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration
Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to
Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and qualification of
the Exchange Securities to be made under the state securities or
blue sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iii) upon the
effectiveness of such Registration Statement, commence the Exchange
Offer in accordance with Section 3(b) hereof. The Exchange
Offer Registration Statement shall be on the appropriate form
permitting registration of the issuance and exchange of Exchange
Securities to be offered in exchange for the Transfer Restricted
Securities and to permit resales of Initial Securities held by
Broker-Dealers as contemplated by Section 3(c)
hereof.
(b) The Company shall use its
reasonable best efforts to cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided , however ,
that in no event shall such period be less than 30 days after the
date notice of the Exchange Offer is mailed to the Holders. The
Company shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other
than the Exchange Securities shall be included in the Exchange
Offer Registration Statement. The Company shall use its reasonable
best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration
Statement has become effective, but in no event later than 270 days
after the Closing Date (or if such 270th day is not a Business Day,
the next succeeding Business Day).
(c) The Company shall indicate in a
“Plan of Distribution” section contained in the
Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Securities that
are Transfer Restricted Securities and that were acquired for its
own account as a result of market-making activities or other
trading activities (other than
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Transfer Restricted Securities acquired directly
from the Company), may exchange such Initial Securities pursuant to
the Exchange Offer; however, such Broker-Dealer may be deemed to be
an “underwriter” within the meaning of the Securities
Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales
of the Exchange Securities received by such Broker-Dealer in the
Exchange Offer, which prospectus delivery requirement may be
satisfied by the delivery by such Broker-Dealer of the Prospectus
contained in the Exchange Offer Registration Statement. Such
“Plan of Distribution” section shall also contain all
other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales
pursuant thereto, but such “Plan of Distribution” shall
not name any such Broker-Dealer or disclose the amount of Initial
Securities held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy after
the date of this Agreement.
The Company shall use its reasonable
best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the
provisions of Section 6(c) hereof to the extent necessary to
ensure that it is available for resales of Initial Securities
acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure
that it conforms in all material respects with the requirements of
this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a
period ending on the earlier of (i) 180 days from the date on
which the Exchange Offer Registration Statement is declared
effective and (ii) the date on which a Broker-Dealer is no
longer required to deliver a prospectus in connection with
market-making or other trading activities.
The Company shall provide sufficient
copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 180-day (or shorter
as provided in the foregoing sentence) period in order to
facilitate such resales.
S ECTION 4. Shelf Registration.
(a) Shelf Registration. If
(i) the Company is not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer because
the Exchange Offer is not permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a) hereof
have been complied with), (ii) for any reason the Exchange
Offer is not Consummated within 270 days after the Closing Date (or
if such 270th day is not a Business Day, the next succeeding
Business Day), or (iii) with respect to any Holder of Transfer
Restricted Securities (A) such Holder is prohibited by
applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the Prospectus contained
in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder
is a Broker-Dealer and holds Initial Securities acquired directly
from the Company or one of its affiliates, then, upon such
Holder’s request, the Company shall
(x) use its reasonable best efforts
to cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the “
Shelf Registration Statement ”) on or prior to the
earliest to occur of (1) the 90th day after the date on
which
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the Company determines that it is
not required to file the Exchange Offer Registration Statement,
(2) the 90th day after the date on which the Company receives
notice from a Holder of Transfer Restricted Securities as
contemplated by clause (ii) above, and (3) the 240th day
after the Closing Date (or if such 240th day is not a Business Day,
the next succeeding Business Day) (such earliest date being the
“ Shelf Filing Deadline ”), which Shelf
Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof;
and
(y) use its reasonable best efforts
to cause such Shelf Registration Statement to be declared effective
by the Commission on or before the 180th day after the Shelf Filing
Deadline (or if such 180th day is not a Business Day, the next
succeeding Business Day).
Notwithstanding the foregoing, the
Company shall have no obligation to file a Shelf Registration
Statement or have it declared effective by the Commission prior to
the 240 th day after the Closing Date. The
Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and
(c) hereof to the extent necessary to ensure that it is
available for resales of Initial Securities by the Holders of
Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms in all material
respects with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years
following the effective date of such Shelf Registration Statement
(or shorter period that will terminate when all the Initial
Securities covered by such Shelf Registration Statement cease to be
Transfer Restricted Securities).
(b) Provision by Holders of
Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within 15 Business
Days after receipt of a request therefor, such information as the
Company may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus
included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make
the information previously furnished to the Company by such Holder
not materially misleading.
S ECTION 5. Additional Interest . If
(i) any of the Registration Statements required by this
Agreement is not filed with the Commission by the end of the 240th
day after the Closing Date or if such 240th day is not a Business
Day, the next succeeding Business Day, (ii) any of such
Registration Statements has not been declared effective by the
Commission by the end of the 240th day after the Closing Date or if
such 240th day is not a Business Day, the next succeeding Business
Day, (iii) the Exchange Offer has not been Consummated by the
end of the 270th day after the Closing Date or if such 270th day is
not a Business Day, the next succeeding Business Day or
(iv) any Registration Statement required by this Agreement is
filed and declared effective but shall after the 240-day period
referred to in Section 3(a) hereof cease to be effective or
fail to be usable for its intended purpose without being succeeded
immediately by a post-effective
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amendment to such Registration Statement that
cures such failure and that is itself immediately declared
effective (each such event referred to in clauses (i) through
(iv), a “ Registration Default ”), the Company
hereby agrees that the interest rate borne by the Transfer
Restricted Securities shall be increased by 0.25% per annum
during the 90-day period immediately following the occurrence of
any Registration Default and shall increase by 0.25% per annum
at the end of each subsequent 90-day period, but in no event shall
such increase exceed 0.5% per annum for each year in which the
Registration Defaults remain uncured. Following the cure of all
Registration Defaults relating to any particular Transfer
Restricted Securities, the interest rate borne by the relevant
Transfer Restricted Securities will be reduced to the original
interest rate borne by such Transfer Restricted Securities;
provided , however , that, if after any such
reduction in interest rate, a different Registration Default
occurs, the interest rate borne by the relevant Transfer Restricted
Securities shall again be increased pursuant to the foregoing
provisions.
All obligations of the Company set
forth in the preceding paragraph that are outstanding with respect
to any Transfer Restricted Security at the time such security
ceases to be a Transfer Restricted Security shall survive until
such time as all such obligations with respect to such security
shall have been satisfied in full.
S ECTION 6. Registration
Procedures.
(a) Exchange Offer Registration
Statement. In connection with the Exchange Offer, the Company
shall comply with all of the provisions of Section 6(c)
hereof, shall use its reasonable best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following
provisions:
(i) If in the reasonable opinion of
counsel to the Company there is a question as to whether the
Exchange Offer is permitted by applicable law, and such counsel
deems it advisable, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the
Company to Consummate an Exchange Offer for such Initial Securities
and to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission
policy.
(ii) As a condition to its
participation in the Exchange Offer pursuant to the terms of this
Agreement, each Holder of Transfer Restricted Securities shall be
required to furnish, upon the request of the Company, prior to the
Consummation thereof, a written representation to the Company
(which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that
(A) it is not an Affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a
distribution of the Exchange Securities to be issued in the
Exchange Offer, (C) it is acquiring the Exchange Securities in
its ordinary course of business and (D) it is not acting on
behalf of any person who could not truthfully make the foregoing
representations. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the
Company’s preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the
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Exchange Offer to participate in a
distribution of the securities to be acquired in the Exchange Offer
(1) could not under Commission policy as in effect on the date
of this Agreement rely on the position of the Commission enunciated
in Morgan Stanley and Co., Inc. (available June 5,
1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission’s letter
to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (which may include any no-action letter
obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements
of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be
covered by an effective registration statement containing the
selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K if the resales are of
Exchange Securities obtained by such Holder in exchange for Initial
Securities acquired by such Holder directly from the
Company.
(b) Shelf Registration
Statement. In connection with the Shelf Registration Statement,
the Company shall comply with all the provisions of
Section 6(c) hereof and shall use its reasonable best efforts
to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and pursuant thereto the
Company will in accordance with Section 4(a) hereof prepare
and file with the Commission a Registration Statement relating to
the registration on any appropriate form under the Securities Act,
which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) General Provisions. In
connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer
Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to
permit resales of Initial Securities by Broker-Dealers), the
Company shall:
(i) use its reasonable best efforts
to keep such Registration Statement continuously effective and
provide all requisite financial statements for the period specified
in Section 3 or 4 hereof, as applicable; upon the occurrence
of any event that would cause any such Registration Statement or
the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement (which may be
accomplished by the filing of the documents incorporated by
reference therein), in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either
clause (A) or (B), use its reasonable best efforts to cause
such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
(ii) use its reasonable best efforts
to prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement
as may be necessary to keep the Registration Statement effective
for the applicable period set forth in Section 3 or 4 hereof,
as applicable, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration
Statement have been
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sold; cause the Prospectus to be
supplemented by any required Prosp
