Exhibit 1
CARDINAL HEALTH, INC.
UNDERWRITING AGREEMENT
December ,
2005
To the Representatives named
in Schedule I hereto of
the Underwriters named in
Schedule II hereto
Dear Sirs:
Cardinal Health, Inc., an Ohio
corporation (the “Company”), proposes to sell to
underwriters named in Schedule II hereto (the
“Underwriters”) for whom you are acting as
representatives (the “Representatives”), the principal
amount of its securities (the “Securities”) identified
in Schedule I hereto issued under an indenture (the
“Indenture”) dated as of April 18, 1997, between the
Company and JP Morgan Trust Company, National Association
(successor to Bank One, N.A., formerly known as Bank One, Columbus,
N.A.), as trustee (the “Trustee”). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms “Underwriters” and
“Representatives”, as used herein, shall each be deemed
to refer to such firm or firms.
1. Representations and
Warranties . The Company represents and warrants to, and agrees
with, each Underwriter that:
(a) The Company meets the
requirements for use of Form S-3 under the Securities Act of 1933
(the “Act”) and has filed with the Securities and
Exchange Commission (the “Commission”) registration
statements on such Form (the file numbers of which are set forth in
Schedule I hereto), which have become effective, for the
registration under the Act of the Securities. Such registration
statements meet the requirements set forth in Rule 415(a)(1)(x)
under the Act and comply in all other material respects with said
Rule. The Company proposes to file with the Commission pursuant to
Rule 424(b) under the Act a supplement to the form of prospectus
included in such registration statements relating to the Securities
and the plan of distribution thereof and has previously advised you
of all further information (financial and other) with respect to
the Company to be set forth therein. Such registration statements,
including the exhibits thereto, as amended at the date of this
Agreement, including the information, if any, deemed pursuant to
Rule 430A or 430B under the Act to be part of such registration
statement, are hereinafter called the “Registration
Statement”; such prospectus in the form in which it appears
in the Registration Statement No. 333-101907 is hereinafter called
the “Basic Prospectus”; any such supplemented form of
preliminary prospectus relating to the Securities, in the form in
which it has been filed with the Commission pursuant to Rule 424(b)
(including the Basic Prospectus as so
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supplemented) is hereinafter called
a “preliminary prospectus,” and such supplemented form
of final prospectus relating to the Securities, in the form in
which it shall be filed with the Commission pursuant to Rule 424(b)
(including the Basic Prospectus as so supplemented) is hereinafter
called the “Final Prospectus”. Any reference herein to
the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein (the
“Incorporated Documents”) pursuant to Item 12 of Form
S-3 which were filed under the Securities Exchange Act of 1934 (the
“Exchange Act”) on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any
preliminary prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms “amend”,
“amendment” or “supplement” with respect to
the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
date of this Agreement, or the issue date of the Basic Prospectus,
any preliminary prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
(b) At or prior to the time when
sales of the Securities were first made (the “Time of
Sale”), the Company had prepared the following information
(collectively, the “Time of Sale Information”): a
preliminary prospectus, dated December 12, 2005 (including the
Basic Prospectus) hereinafter called the “Preliminary
Prospectus”, and each “free-writing prospectus”
(as defined pursuant to Rule 405 under the Act) listed on Schedule
III hereto.
(c) As of the Time of Sale, when the
Final Prospectus is first filed pursuant to Rule 424(b) under the
Act, when, prior to the Closing Date (as defined in Section 3
hereof), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to
the Final Prospectus is filed with the Commission and at the
Closing Date, (i) the Registration Statement, as amended as of any
such time, and the Final Prospectus, as amended or supplemented as
of any such time, and the Indenture complied and will comply in all
material respects with the applicable requirements of the Act, the
Trust Indenture Act of 1939 (the “Trust Indenture Act”)
and the Exchange Act and the respective rules thereunder and (ii)
the Registration Statement, as amended as of any such time, did not
contain or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading
and the Final Prospectus, as amended or supplemented as of any such
time, did not contain or will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, that the Company makes no
representations or warranties as to (1) that part of the
Registration Statement which constitutes the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the
Trust Indenture Act or (2) the information contained in or omitted
from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives
specifically for use in the Registration Statement or the Final
Prospectus. No order suspending the effectiveness of the
Registration Statement or the use of any preliminary prospectus or
the Final Prospectus has been issued by the Commission.
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(d) Each preliminary prospectus, at
the time of filing thereof, complied in all material respects with
the Act. The Time of Sale Information, at the Time of Sale did not,
and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the
Company makes no representations or warranties as to the
information contained in or omitted from the Time of Sale
Information made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in
such Time of Sale Information. No statement of material fact to be
included in the Final Prospectus has been omitted from the Time of
Sale Information and no statement of material fact included in the
Time of Sale Information that is required to be included in the
Final Prospectus will be omitted therefrom.
(e) Other than the Preliminary
Prospectus and the Final Prospectus, the Company (including its
agents and representatives, other than the Underwriters in their
capacity as such) has not used, authorized, approved or referred to
and will not use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Act) that
constitutes an offer to sell or solicitation of an offer to buy the
Securities (each such communication by the Company or its agents
and representatives (other than a communication referred to in
clause (i) below) an “Issuer Free Writing Prospectus”)
other than (i) any document not constituting a prospectus pursuant
to Section 2(a)(10)(a) of the Act or Rule 134 under the Act or (ii)
the documents listed on Schedule III hereto and other written
communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied
in all material respects with the Act, has been filed in accordance
with the Act (to the extent required thereby) and, when taken
together with the Preliminary Prospectus filed prior to the first
use of such Issuer Free Writing Prospectus, did not, and at the
Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company
makes no representations or warranties as to the information
contained in or omitted from each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in any
Issuer Free Writing Prospectus.
(f) The documents incorporated by
reference in the Registration Statement, the Final Prospectus or
the Time of Sale Information, when they became effective or were
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange
Act, and the rules and regulation of the Commission thereunder, as
applicable, and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein
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or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and during the period when a prospectus
relating to the Securities is required to be delivered under the
Act (or such delivery is required but for Rule 172 under the Act)
any further documents so filed during such period and incorporated
by reference in the Registration Statement, the Prospectus or the
Time of Sale Information, when such documents become effective or
are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the
Exchange Act, as applicable, and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(g) The financial statements and the
related notes thereto included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Final
Prospectus comply in all material respects with the applicable
requirements of the Act and the Exchange Act, and the rules and
regulations of the Commission thereunder, as applicable, and
present fairly the financial position of the Company and its
subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods covered thereby, and the
supporting schedule incorporated by reference in the Registration
Statement presents fairly the information required to be stated
therein; and the other financial information included or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents
fairly the information shown thereby.
(h) Since the date of the most
recent financial statements included or incorporated by reference
in the Registration Statement, the Time of Sale Information and the
Final Prospectus, there has been no material adverse change in the
financial condition, earnings, business, properties or results of
operations of the Company and its subsidiaries on a consolidated
basis, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Registration Statement, the Time of Sale Information and the Final
Prospectus.
(i) The Company is a corporation
duly organized and validly existing in good standing under the laws
of the State of Ohio with corporate power and authority to own and
hold under lease its properties and conduct its business as
described in the Final Prospectus and holds all material licenses
and is duly qualified to conduct the business in which it is
engaged in each jurisdiction or place where the conduct of its
business requires such licenses or qualification and where the
failure to be so licensed or qualified would have a material
adverse effect on the business or financial condition of the
Company and its subsidiaries taken as a whole (a “Material
Adverse Effect”).
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(j) Each of the Company’s
significant subsidiaries (as defined in Rule 405 under the Act) is
duly organized and validly existing in good standing under the laws
of the jurisdiction of its incorporation with corporate power and
authority to own and hold under lease its properties and to conduct
its business as described in the Time of Sale Information and the
Final Prospectus.
(k) The Indenture has been duly and
validly authorized, executed and delivered by the Company and,
assuming due execution and delivery by the Trustee, is a valid and
binding agreement of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting
creditors’ rights generally and subject to the applicability
of general principles of equity, and has been duly qualified under
the Trust Indenture Act.
(l) The Securities have been duly
authorized and, when executed by the Company and authenticated by
the Trustee in accordance with the Indenture and delivered to you
against payment therefor in accordance with the terms of this
Agreement, will have been validly issued and delivered, and will
constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture and enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors’ rights generally and subject to the
applicability of general principles of equity, and the Securities
conform in all material respects to the description thereof in the
Time of Sale Information and the Final Prospectus.
(m) There are no legal or
governmental proceedings pending, or to the knowledge of the
Company threatened, required to be described in the Registration
Statement, the Time of Sale Information or the Final Prospectus
which are not described as required, and there is no contract or
document of a character required to be described in the
Registration Statement, the Time of Sale Information or the Final
Prospectus or to be filed as an exhibit to the Registration
Statement or any Incorporated Document which is not described or
filed as required.
(n) The Company is not in violation
of its charter or code of regulations or in default in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or
in any indenture, material lease or loan agreement, except where
any default would not have a Material Adverse Effect. The issue and
sale of the Securities, the execution and delivery of this
Agreement, the performance of the obligations of the Company set
forth herein and the consummation of the transactions contemplated
hereby will not conflict with or constitute a breach of, or default
under, the charter or code of regulations of the Company or any of
its subsidiaries, any agreement, indenture or other instrument to
which the Company or any of its subsidiaries is a party or by which
any of them or any of their property is bound, or any law,
administrative regulation or court decree applicable to the Company
or any of its subsidiaries, except where any breach or default
would not have a Material Adverse Effect.
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(o) Neither the execution and
delivery of this Agreement, nor the fulfillment of the terms herein
set forth and the consummation of the transactions herein
contemplated require any consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other
governmental body (except such as have been obtained under the Act
and the Trust Indenture Act or such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters).
(p) This Agreement has been duly
authorized, executed and delivered by the Company.
(q) The Company is not an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended.
(r) Ernst & Young LLP, who have
certified the financial statements and supporting schedules
included in the Registration Statement as described under
“Experts”, is an independent registered public
accounting firm with respect to the Company as required by the Act
and the applicable rules and regulations adopted by the Commission
and the Public Company Accounting Oversight Board (United
States).
(s) The Company and its officers and
directors are in material compliance with applicable provisions of
the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith.
(t) The Company is not an ineligible
issuer as defined in Rule 164 under the Act in connection with the
offering of the Securities, at the time specified in Rule 164(h)(2)
under the Act.
2. Purchase and Sale .
Subject to the terms and conditions hereof and in reliance upon the
representations, warranties and agreements herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule I hereto the principal
amount of the Securities set forth opposite such
Underwriter’s name in Schedule II hereto.
3. Delivery and Payment .
Delivery of and payment for the Securities shall be made at the
location, date and time specified in Schedule I hereto (or such
later date not later than five Business Days (as hereinafter
defined) after such specified date as the Representatives and the
Company shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the “Closing
Date”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the
order of the Company by certified or official bank check or checks
drawn in federal funds or similar same day funds, by wire transfer
in same day funds or as otherwise agreed by the Company and the
Representatives. Certificates for the Securities shall be
registered in such names and in such denominations as the
Representatives may request not less than one full Business Day in
advance of the Closing Date. The term “Business Day”
means each day which is neither a Saturday, Sunday or other day on
which banking institutions in New York, New York are authorized or
required by law or executive order to be closed.
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The Company agrees to have the
Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on
the Business Day prior to the Closing Date.
4. Certain Agreements of the
Company . The Company agrees with the several Underwriters
that:
(a) Prior to the later of (i)
termination of the offering of the Securities as determined by the
Representatives and as evidenced by written notice thereof to the
Company from the Representatives or (ii) the Closing Date, the
Company will not file any amendment of the Registration Statement
or supplement (including the Final Prospectus but excluding any
prospectus supplement relating to a subsequent issuance of
securities) to the Basic Prospectus, and will not use, authorize,
approve, refer to or file any Issuer Free Writing Prospectus (other
than as listed on Schedule III hereto), unless the Company has
furnished the Representatives a copy for the Representatives’
review a reasonable time prior to filing thereof. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to
be filed with the Commission pursuant to Rule 424(b) under the Act.
The Company will not use, authorize, approve, refer to or file any
Issuer Free Writing Prospectus to which the Representatives
reasonably object. The Company will promptly advise the
Representatives (i) when the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424(b), (ii) when any Issuer
Free Writing Prospectus shall have been filed with the Commission,
(iii) when any amendment to the Registration Statement relating to
the Securities shall have become effective, (iv) of any request by
the Commission for any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or for any
additional information, (v) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use all reasonable efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) (i) If, at any time when a
prospectus relating to the Securities is required to be delivered
under the Act (or such delivery is required but for Rule 172 under
the Act), any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules
thereunder, the Company will promptly notify the Underwriters
thereof and promptly prepare and file with the Commission, subject
to the first sentence of
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paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance, and
(ii) if at any time prior to the Closing Date, any event occurs as
a result of which the Time of Sale Information as then amended or
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary to
amend or supplement the Time of Sale Information to comply with the
Act or the Exchange Act or the respective rules thereunder, the
Company will promptly notify the Underwriters thereof and promptly
prepare and file with the Commission (to the extent required),
subject to the first sentence of paragraph (a) of this Section 4,
and furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to
the Time of Sale Information which will correct such statement or
omission or which will effect such compliance.
(c) The Company will make generally
available within the meaning of Section 11(a) of the Act to its
securityholders an earning statement, which need not be audited,
covering a twelve- month period commencing after the date of this
Agreement and ending not later than 15 months thereafter as soon as
practicable following the end of such period, which earning
statement shall satisfy the provisions of Section 11(a) of the Act
and may consist of earning statements covering successive fiscal
quarters.
(d) The Company will furnish to the
Representatives and counsel for the Underwriters, without charge,
copies of the Registration Statement (including exhibits thereto)
and each amendment thereto which shall become effective on or prior
to the Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (or such delivery
is required but for Rule 172 under the Act), as many copies of the
Final Prospectus and any amendments thereof and supplements thereto
and each Issuer Free Writing Prospectus as the Representatives may
reasonably request. The Company will pay the expenses of printing
all documents relating to the offering unless otherwise agreed with
the Representatives.
(e) The Company will arrange for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may reasonably designate and
will maintain such qualifications in effect so long as required for
the distribution of the Securities; provided that in no event shall
the Company be obligated to qualify to do business in
any
