EX-10.2






Exhibit 10.2




FORM OF 

TAX MATTERS AGREEMENT




by and between




Cardinal Health Inc.




and




CareFusion Corporation




Dated as of                     , 2009




 









 





TAX MATTERS AGREEMENT




     THIS
TAX MATTERS AGREEMENT (this “Agreement”), dated as
of [•], 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.



     “California
Active Trade or Business” means [•].



     “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, or (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, 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



2









 







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.



     “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, or (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, 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) [•]% 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.



3









 





     “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 [•], 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).



4









 





     “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.



5









 





     “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).



6









 





     “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 [•], 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



7









 







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.



8









 





     “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 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 cause a CareFusion Entity
to file), any Mixed Business Income Tax Return for a Pre-Closing




9









 




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.



10









 





     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, as provided in Schedule 2.04.
The Parties shall negotiate in good faith to resolve all disputed issues.



11









 





     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 proportion to the number of days in each such portion.



     Section 2.06. Timing of Payments. All Taxes required to be paid or caused to be paid
pursuant to this Article II by either Cardinal Health or a Cardinal Health Entity or CareFusion or
a CareFusion Entity, as the case may be, to an applicable Taxing Authority or by Cardinal Health or
CareFusion to the other Party pursuant to this Agreement, shall, in the case of a payment to a
Taxing Authority, be paid on or before the Due Date for the payment of such Taxes and, in the case
of a payment to the other Party, be paid at least 2 business days before the Due Date for the
payment of such Taxes by the other Party.



     Section 2.07. Expenses. Except as provided in Section 2.04(a) in respect of the
proforma Tax Returns submitted by CareFusion or Section 8.01(b) in respect of the Accounting Firm,
each Party shall bear its own expenses incurred in connection with this Article II.



     Section 2.08. Coordination with Article IV. This Article II shall not apply to any
amended Tax Returns, such amended Tax Returns being governed by Article IV.



ARTICLE III




INDEMNIFICATION




     Section 3.01. Indemnification by Cardinal Health. Cardinal Health shall pay, and
shall indemnify and hold the CareFusion Indemnified Parties harmless from and against, without
duplication, (i) all Cardinal Health Taxes, (ii) all Taxes incurred by CareFusion or any CareFusion
Entity by reason of the breach by Cardinal Health of any of its representations, warranties or
covenants hereunder, and (iii) any costs and expenses related to the foregoing (including
reasonable attorneys’ fees and expenses).



     Section 3.02. Indemnification by CareFusion. CareFusion shall pay, and shall
indemnify and hold the Cardinal Health Indemnified Parties harmless from and against, without
duplication, (i) all CareFusion Taxes, (ii) all Taxes incurred by Cardinal Health or any Cardinal
Health Entity by reason of the breach by CareFusion of any of its representations, warranties or
covenants hereunder, and (iii) any costs and expenses related to the foregoing (including
reasonable attorneys’ fees and expenses).



12









 





     Section 3.03. Characterization of and Adjustments to Payments.



     (a) For all Tax purposes, Cardinal Health and CareFusion agree to treat (i) any payment
required by this Agreement (other than payments with respect to interest accruing after the Closing
Date) as either a contribution by Cardinal Health to CareFusion or a distribution by CareFusion to
Cardinal Health, as the case may be, occurring immediately prior to the Closing Date or as a
payment of an assumed or retained liability and (ii) any payment of non-federal Taxes by or to a
Taxing Authority or any payment of interest as taxable or deductible, as the case may be, to the
Party entitled under this Agreement to retain such payment or required under this Agreement to make
such payment, in either case except as otherwise required by applicable Law.



     (b) Any indemnity payment under this Article III shall be increased to take into account any
inclusion in income of the Indemnified Party arising from the receipt of such indemnity payment and
shall be decreased to take into account any reduction in income of the Indemnified Party arising
from such indemnified liability. For purposes hereof, any inclusion or reduction shall be
determined (i) using the highest marginal rates in effect at the time of the determination and (ii)
assuming that the Indemnified Party will be liable for Taxes at such rate and has no Tax Attributes
at the time of the determination.



     Section 3.04. Timing of Indemnification Payments. Indemnification payments in respect
of any Liabilities for which an Indemnified Party is entitled to indemnification pursuant to this
Article III shall be paid by the Indemnifying Party to the Indemnified Party as such Liabilities
are incurred upon demand by the Indemnified Party, including reasonably satisfactory documentation
setting forth the basis for the amount of such indemnification payment.



ARTICLE IV




REFUNDS, CARRYBACKS, AMENDMENTS AND TAX ATTRIBUTES




     Section 4.01. Refunds.



     (a) Except as provided in Section 4.02, Cardinal Health shall be entitled to all Refunds of
Taxes for which Cardinal Health is or may be liable pursuant to Article III, and CareFusion shall
be entitled to all Refunds of Taxes for which CareFusion is or may be liable pursuant to
Article III. A Party receiving a Refund to which the other Party is entitled pursuant to this
Agreement shall pay the amount to which such other Party is entitled within ten (10) days after the
receipt of the Refund.



     (b) In the event of an Adjustment relating to Taxes for which one Party is or may be liable
pursuant to Article III which would have given rise to a Refund but for an offset against the Taxes
for which the other Party is or may be liable pursuant to Article III (the “Benefited
Party”), then the Benefited Party shall pay to the other Party, within ten (10) days of the
Final Determination of such Adjustment an amount equal to the lesser of (i) the amount of such
hypothetical Refund or (ii) the amount of such reduction in the Taxes of the Benefited Party, in
each case plus interest at the rate set forth in Section 6621(a)(1) on such amount for the



13









 







period from the filing date of the Tax Return that would have given rise to such Refund to the
payment date.



     (c) Notwithstanding Section 4.01(a), to the extent that a Party applies or causes to be
applied an overpayment of Taxes as a credit toward or a reduction in Taxes otherwise payable (or a
Taxing Authority requires such application in lieu of a Refund) and such overpayment of Taxes, if
received as a Refund, would have been payable by such Party to the other Party pursuant to this
Section 4.01, such Party shall pay such amount to the other Party no later than the Due Date of the
Tax Return for which such overpayment is applied to reduce Taxes otherwise payable.



     (d) To the extent that the amount of any Refund under this Section 4.01 is later reduced by a
Taxing Authority or a Tax Proceeding, such reduction shall be allocated to the Party to which such
Refund was allocated pursuant to this Section 4.01 and an appropriate adjusting payment shall be
made.



     Section 4.02. Carrybacks.



     (a) The carryback of any loss, credit or other Tax Attribute from any Post-Closing Period
shall be in accordance with the provisions of the Code and Treasury Regulations (and any applicable
state, local or foreign Laws).



     (b) (i) Subject to Sections 4.02(c) and 4.02(d), in the event that any member of the
CareFusion Group realizes any loss, credit or other Tax Attribute in a Post-Closing Period of such
member, such member may elect to carry back such loss, credit or other Tax Attribute to a
Pre-Closing Period or a Straddle Period of Cardinal Health. Cardinal Health shall cooperate with
CareFusion and such member in seeking from the appropriate Taxing Authority any Refund that
reasonably would result from such carryback (including by filing an amended Tax Return) at
CareFusion’s cost and expense; provided, that Cardinal Health shall not be required to seek
such Refund and CareFusion and such member shall not be permitted to seek such Refund, in each case
to the extent that such Refund would reasonably be expected to materially adversely impact Cardinal
Health (including through an increase in Taxes or a loss or reduction of a Tax Attribute
regardless of whether or when such Tax Attribute otherwise would have been used), in each case
without the prior written consent of Cardinal Health, which consent shall not be unreasonably
withheld or delayed. CareFusion (or such member) shall be entitled to any Refund realized by any
member of the Cardinal Health Group or the CareFusion Group resulting from such carryback.



          (ii) Subject to Sections 4.02(c) and 4.02(d), in the event that any member of the Cardinal
Health Group realizes any loss, credit or other Tax Attribute in a Post-Closing Period of such
member, such member may elect to carry back such loss, credit or other Tax Attribute to a
Pre-Closing Period or a Straddle Period of such member. CareFusion shall cooperate with Cardinal
Health and such member in seeking from the appropriate Taxing Authority any Refund that reasonably
would result from such carryback (including by filing an amended Tax Return), at Cardinal Health’s
cost and expense; provided, that CareFusion shall not be required to seek such Refund and
Cardinal Health and such member shall not be permitted to seek such Refund, in each case to the
extent that such Refund would reasonably be expected to




14









 




materially adversely impact CareFusion (including through an increase in Taxes or a loss or
reduction of a Tax Attribute regardless of whether or when such Tax Attribute otherwise would have
been used), in each case without the prior written consent of CareFusion, which consent shall not
be unreasonably withheld or delayed. Cardinal Health shall be entitled to any Refund realized by
any member of the CareFusion Group or the Cardinal Health Group resulting from such carryback.




     (c) Except as otherwise provided by applicable Law, if any loss, credit or other Tax Attribute
of the Cardinal Health Business and the CareFusion Business both would be eligible to be carried
back or carried forward to the same Pre-Closing Period (had such carryback been the only carryback
to such taxable period), any Refund resulting therefrom shall be allocated between Cardinal Health
and CareFusion proportionately based on the relative amounts of the Refunds to which the Cardinal
Health Business and the CareFusion Business, respectively, would have been entitled had such
carryback been the only carryback to such taxable period.



     (d) To the extent the amount of any Refund under this Section 4.02 is later reduced by a Tax
Authority or a Tax Proceeding, such reduction shall be allocated to the Party to which such Refund
was allocated pursuant to this Section 4.02.



     Section 4.03. Amended Tax Returns.



     (a) Cardinal Health Consolidated Returns. Cardinal Health shall, in its sole
discretion, be permitted to amend any Cardinal Health Consolidated Return for a Pre-Closing Period
or a Straddle Period; provided, however, that unless otherwise required by a Final
Determination, Cardinal Health shall not amend any such Cardinal Health Consolidated Return to the
extent that any such amendment (i) would reasonably be expected to materially adversely impact
CareFusion (including through an increase in Taxes or a loss or reduction of a Tax Attribute
regardless of whether or when such Tax Attribute otherwise would have been used) or (ii) is
inconsistent with Past Practice, in each case without the prior written consent of CareFusion,
which consent shall not be unreasonably withheld or delayed.



     (b) Mixed Business Income Tax Returns. Cardinal Health shall, in its sole discretion,
be permitted to amend, or to cause CareFusion or any CareFusion Entity to amend (and CareFusion
shall, if Cardinal Health so chooses, amend or cause the applicable CareFusion Entity to amend),
any Mixed Business Income Tax Return for a Pre-Closing Period or a Straddle Period other than any
such Tax Return relating to Shanghai Taxes; provided, however, that unless
otherwise required by a Final Determination, Cardinal Health shall not be permitted to so amend any
such Mixed Business Income Tax Return to the extent that any such amendment (i) would reasonably be
expected to materially adversely impact CareFusion (including through an increase in Taxes or a
loss or reduction of a Tax Attribute regardless of whether or when such Tax Attribute otherwise
would have been used) in a Post-Closing Period or the portion of a Straddle Period beginning after
the Closing Date or (ii) is inconsistent with Past Practice, in each case without the prior written
consent of CareFusion, which consent shall not be unreasonably withheld or delayed.



     (c) Mixed Business Non-Income Tax Returns and Single Business Returns. Each of
Cardinal Health or CareFusion, as the case may be, shall, in its sole discretion, be



15









 







permitted to amend (or cause or permit to be amended) any Mixed Business Non-Income Tax Return
or Single Business Return; provided, however, that if any Party wishes to amend any
such Tax Return for which the other Party may be liable for Taxes pursuant to this Agreement, then,
unless otherwise required by a Final Determination, Cardinal Health or CareFusion, as the case may
be (the “Filing Party”) shall not be permitted to so amend (or cause or permit to be
amended) any such Mixed Business Non-Income Tax Return or Single Business Return, as the case may
be, to the extent that any such amendment (i) would reasonably be expected to materially adversely
impact the other Party (including through an increase in Taxes or a loss or reduction of a Tax
Attribute regardless of whether or when such Tax Attribute otherwise would have been used) or (ii)
is inconsistent with Past Practice, in each case without the prior written consent of such other
Party, which consent shall not be unreasonably withheld or delayed.



     (d) Mixed Business Income Tax Returns relating to Shanghai Taxes. CareFusion shall,
in its sole discretion, be permitted to amend, or to cause any CareFusion Entity to amend, any
Mixed Business Income Tax Return relating to Shanghai Taxes for a Pre-Closing Period or a Straddle
Period; provided, however, that unless otherwise required by a Final Determination,
CareFusion shall not be permitted to so amend any such Mixed Business Income Tax Return relating to
Shanghai Taxes to the extent that any such amendment (i) would reasonably be expected to materially
adversely impact Cardinal Health (including through an increase in Taxes or a loss or reduction of
a Tax Attribute regardless of whether or when such Tax Attribute otherwise would have been used) in
a Post-Closing Period or the portion of a Straddle Period beginning after the Closing Date or (ii)
is inconsistent with Past Practice, in each case without the prior written consent of Cardinal
Health, which consent shall not be unreasonably withheld or delayed.



     Section 4.04. Tax Attributes.



     (a) Tax Attributes arising in a Pre-Closing Period shall be allocated to the Cardinal Health
Group and the CareFusion Group in accordance with the Code and Treasury Regulations (and any
applicable state, local and foreign Laws). Except in connection with Tax Attributes relating to
United Kingdom Tax relief arising in Pre-Closing Periods, Cardinal Health and CareFusion shall
jointly determine the allocation of such Tax Attributes arising in Pre-Closing Periods as soon as
reasonably practicable following the Closing Date, and hereby agree to compute all Taxes for
Post-Closing Periods consistently with that determination unless otherwise required by a Final
Determination. Cardinal Health shall solely determine the allocation of Tax Attributes relating to
United Kingdom Tax relief arising in Pre-Closing Periods and Cardinal Health and CareFusion hereby
agree to compute all Taxes for Straddle Periods consistently with that determination unless
otherwise required by a Final Determination.



     (b) To the extent that the amount of any Tax Attribute is later reduced or increased by a
Taxing Authority or Tax Proceeding, such reduction or increase shall be allocated to the Party to
which such Tax Attribute was allocated pursuant to Section 4.04(a).



     Section 4.05. Treatment of Deductions Associated with Equity-Related Compensation.



16









 





     (a) Solely Cardinal Health or any member of the Cardinal Health Group, as the case may be,
shall be entitled to claim any Tax deduction associated with the following items on its respective
Tax Return:



          (i) The vesting of CareFusion restricted stock or the vesting or settlement of CareFusion
restricted stock units received by any Cardinal Health Employee (as defined below) with respect to
Cardinal Health restricted stock or restricted stock units held by such Cardinal Health Employee
and payment of any dividends with respect to such CareFusion restricted stock.




          (ii) The exercise of any Cardinal Health stock options or stock appreciation rights by any
Cardinal Health Employee and the vesting of Cardinal Health restricted stock or the vesting or
settlement of Cardinal Health restricted stock units held by any Cardinal Health Employee (and
payment of any dividends on such Cardinal Health restricted stock).




     (b) Solely CareFusion or any member of the CareFusion Group, as the case may be, shall be
entitled to claim any Tax deduction associated with the following items on its respective Tax
Return:



          (i) The exercise of any Cardinal Health stock options or stock appreciation rights by any
CareFusion Employee (as defined below) on or after the first date any member of the CareFusion
Group employed such CareFusion Employee.




          (ii) The vesting of Cardinal Health restricted stock or the vesting or settlement of Cardinal
Health restricted stock units held by any CareFusion Employee on or after the first date any member
of the CareFusion Group employed such CareFusion Employee (and the payment of any dividends on such
Cardinal Health restricted stock at any time on or after the first date any member of the
CareFusion Group employed such CareFusion Employee).




     (c) The following terms shall have the following meanings:



          (i) “CareFusion Employee” means any person employed or formerly employed by any member of the
CareFusion Group at the time of the exercise, vesting, settlement disqualifying disposition or
payment, as appropriate, unless, at such time, such person is employed by a member of the Cardinal
Health Group or was more recently employed by a member of the Cardinal Health Group than by a
member of the CareFusion Group;




          (ii) “Cardinal Health Employee” means any person employed or formerly employed by any member
of the Cardinal Health Group at the time of the exercise, vesting, disqualifying disposition or
payment, as appropriate, unless, at such time, such person is a CareFusion Employee.




17









 








ARTICLE V




TAX PROCEEDINGS




     Section 5.01. Notification of Tax Proceedings. Within ten (10) days after an
Indemnified Party becomes aware of the commencement of a Tax Proceeding that may give rise to Taxes
for which an Indemnifying Party is responsible pursuant to Article III, such Indemnified Party
shall notify the Indemnifying Party of such Tax Proceeding, and thereafter shall promptly forward
or make available to the Indemnifying Party copies of notices and communications relating to such
Tax Proceeding. The failure of the Indemnified Party to notify the Indemnifying Party of the
commencement of any such Tax Proceeding within such ten (10) day period or promptly forward any
further notices or communications shall not relieve the Indemnifying Party of any obligation which
it may have to the Indemnified Party under this Agreement except to the extent that the
Indemnifying Party is actually prejudiced by such failure.



     Section 5.02. Statute of Limitations. Any extension of the statute of limitations for
any Taxes or a Tax Return for any Pre-Closing Period or a Straddle Period shall be made by the
Party required to file such Tax Return or pay such Taxes to a Taxing Authority; provided
that to the extent such Taxes or Tax Return may result in an indemnity payment pursuant to this
Agreement by the Party other than the filing Party, the Indemnifying Party may, in its reasonable
discretion, require that the filing Party extend the applicable statute of limitations for such
period as determined by the Indemnifying Party.



     Section 5.03. Tax Proceeding Procedures Generally. Except as provided in Section
5.04, the Indemnifying Party shall be entitled to contest, compromise and settle any Adjustment
proposed, asserted or assessed pursuant to any Tax Proceeding for which the Indemnifying Party is
responsible pursuant to Article III and any such defense shall be made diligently and in good
faith; provided, that, the Indemnifying Party shall keep the Indemnified Party
informed in a timely manner of all actions proposed to be taken by the Indemnifying Party and shall
permit the Indemnified Party to observe all proceedings with respect to such Tax Proceeding;
provided further, that, other than with respect to any Adjustment relating
to those matters set forth on Schedule 5.03 hereto, if such Adjustment (or any actions proposed to
be taken with respect thereto) would reasonably be expected to give rise to Taxes of the
Indemnified Party in an amount of $5 million or more (other than Taxes for which the Indemnifying
Party is responsible under Article III), determined on an annual basis, then, unless waived by the
Parties in writing, the Indemnifying Party shall (a) prepare all correspondence or filings to be
submitted to any Taxing Authority or judicial authority in a manner consistent with the Tax Return
which is the subject of such Adjustment as filed and timely provide the Indemnified Party with
copies of any such correspondence or filings for the Indemnified Party’s prior review and consent,
which consent shall not be unreasonably withheld, (b) provide the Indemnified Party with written
notice reasonably in advance of, and the Indemnified Party shall have the right to attend and
participate in, any formally scheduled meetings with any Taxing Authority or hearings or
proceedings before any judicial authority with respect to such Adjustment, (c) not enter into any
settlement with any Taxing Authority with respect to such Adjustment without the prior written
consent of the Indemnified Party, which consent shall not be unreasonably withheld and (d) not
contest such Adjustment before a judicial authority unless (A) such Adjustment would reasonably be
expected to give rise to Taxes payable by the



18









 







Indemnifying Party in an amount of $10 million or more or (B) the Indemnifying Party has
received an opinion of a nationally recognized law firm that it is more likely than not to prevail
on the merits.



     Section 5.04. Tax Proceedings in respect of Restructuring/Distribution Taxes and
Disqualifying Actions.



     (a) Cardinal Health and CareFusion shall be entitled to jointly contest, compromise and settle
any Adjustment proposed, asserted or assessed pursuant to any Tax Proceeding relating to (i)
Restructuring/Distribution Taxes and (ii) any Taxes attributable to a CareFusion Disqualifying
Action.



     (b) Cardinal Health shall be entitled to contest, compromise and settle any Adjustment
proposed, asserted or assessed pursuant to any Tax Proceeding relating to any Taxes attributable to
a Cardinal Health Disqualifying Action and shall defend such Adjustment diligently and in good
faith; provided, that, unless waived by the Parties in writing, Cardinal Health
shall (i) keep CareFusion informed in a timely manner of all actions taken or proposed to be taken
by Cardinal Health, (ii) provide copies of all correspondence or filings to be submitted to any
Taxing Authority or judicial authority to CareFusion for its prior review and consent, which
consent shall not be unreasonably withheld and (iii) provide CareFusion with written notice
reasonably in advance of, and CareFusion shall have the right to attend, any formally scheduled
meetings with any Taxing Authority or hearings or proceedings before any judicial authority.



ARTICLE VI




TAX-FREE STATUS OF THE DISTRIBUTION




     Section 6.01. Representations and Warranties.



     (a) CareFusion. CareFusion hereby represents and warrants or covenants and agrees, as
appropriate, that (i) it has examined (A) the IRS Ruling, (B) the Opinions, (C) each submission to
the IRS in connection with the IRS Ruling, (D) the representation letter from Cardinal Health
addressed to Counsels supporting the Opinions, (E) the representation letter from CareFusion
addressed to Counsels supporting the Opinions and (F) any other materials delivered or deliverable
by Cardinal Health or CareFusion in connection with the rendering by Counsels of the Opinions and
the issuance by the IRS of the IRS Ruling (all of the foregoing, collectively, the “Tax
Materials”) and (ii) the facts presented and the representations made therein, to the extent
descriptive of the CareFusion Group (including the business purposes for Cardinal Health’s
retention of a portion of the stock of CareFusion and each of the distributions described in the
IRS Ruling and the other Tax Materials to the extent that they relate to the CareFusion Group and
the plans, proposals, intentions and policies of the CareFusion Group), are, or will be from the
time presented or made through and including the Effective Time and thereafter as relevant, true,
correct and complete in all respects.



     (b) Cardinal Health. Cardinal Health hereby represents and warrants or covenants and
agrees, as appropriate, that (i) it has examined the Tax Materials (ii) it has



19









 







delivered complete and accurate copies of the Tax Materials to CareFusion and (iii) the facts
presented and the representations made therein, to the extent descriptive of the Cardinal Health
Group (including the business purposes for Cardinal Health’s retention of a portion of the stock of
CareFusion and each of the distributions described in the IRS Ruling and the other Tax Materials to
the extent that they relate to the Cardinal Health Group and the plans, proposals, intentions and
policies of the Cardinal Health Group), are, or will be from the time presented or made through and
including the Effective Time and thereafter as relevant, true, correct and complete in all
respects.



     (c) No Contrary Knowledge. Each of Cardinal Health and CareFusion represents and
warrants that it knows of no fact (after due inquiry) that may cause the Tax treatment of the
Restructuring or the Distribution to be other than the Tax-Free Status of the Transactions.



     (d) No Contrary Plan. Each of Cardinal Health and CareFusion represents and warrants
that neither it, nor any of its Affiliates, has any plan or intent to take any action which is
inconsistent with any statements or representations made in the Tax Materials.



     Section 6.02. Restrictions Relating to the Distribution.



     (a) General. Neither Cardinal Health nor CareFusion shall, nor shall Cardinal Health
or CareFusion permit any Cardinal Health Entity or any CareFusion Entity, respectively, to take or
fail to take, as applicable, any action that constitutes a Disqualifying Action described in the
definitions of Cardinal Health Disqualifying Action and CareFusion Disqualifying Action,
respectively.



     (b) Restrictions. Prior to the first day following the second anniversary of the
Distribution (the “Restriction Period”), CareFusion:



          (i) shall continue and cause to be continued the active conduct of (i) the DAM CMP Business,
the 200 CMP Business and the Pyxis Business (as such terms are defined in the submissions to the
IRS in connection with the IRS Ruling), in each case taking into account Section 355(b)(3) of the
Code and (ii) its California Active Trade or Business, in all cases as conducted immediately prior
to the Distribution.




          (ii) shall not, and shall not permit any Spin-off Entities to, voluntarily dissolve or
liquidate (including any action that is a liquidation for federal income tax purposes).




          (iii) shall not (1) enter into any Proposed Acquisition Transaction or, to the extent
CareFusion has the right to prohibit any Proposed Acquisition Transaction, permit any Proposed
Acquisition Transaction to occur, (2) redeem or otherwise repurchase (directly or through an
Affiliate) any stock, or rights to acquire stock, except to the extent such repurchases satisfy
Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to the amendment of such Revenue
Procedure by Revenue Procedure 2003-48), (3) amend its certificate of incorporation (or other
organizational documents), or take any other action, whether through a stockholder vote or
otherwise, affecting the relative voting rights of its capital stock (including through the
conversion of any capital stock into another class of capital stock), (4) merge or consolidate with
any other Person and shall not permit any Spin-off Entities to merge or




20









 




consolidate with any other Person or (5) take any other action or actions (including any
action or transaction that would be reasonably likely to be inconsistent with any representation
made in the Tax Materials) which in the aggregate (and taking into account any other transactions
described in this Section 6.02(b)(iii)) would be reasonably likely to have the effect of causing or
permitting one or more Persons (whether or not acting in concert) to acquire directly or indirectly
stock representing a Fifty-Percent or Greater Interest in CareFusion or otherwise jeopardize the
Tax-Free Status of the Transactions.




          (iv) shall not, and shall not permit any Spin-off Entities (or members of their respective
SAG) to sell, transfer, or otherwise dispose of or agree to, sell, transfer or otherwise dispose
(including in any transaction treated for federal income tax purposes as a sale, transfer or
disposition) of assets (including, any shares of capital stock of a Subsidiary) that, in the
aggregate, constitute more than 30% of the gross assets of such Spin-off Entity or more than 30% of
the consolidated gross assets of such Spin-off Entity and members of its respective SAG. The
foregoing sentence shall not apply to (A) sales, transfers, or dispositions of assets in the
Ordinary Course of Business, (B) any cash paid to acquire assets from an unrelated Person in an
arm’s-length transaction, (C) any assets transferred to a Person that is disregarded as an entity
separate from the transferor for federal income tax purposes or (D) any mandatory or optional
repayment (or pre-payment) of any indebtedness of such Spin-off Entity (or any member of its
respective SAG). The percentages of gross assets or consolidated gross assets of such Spin-off
Entity or its respective SAG, as the case may be, sold, transferred, or otherwise disposed of,
shall be based on the fair market value of the gross assets of such Spin-off Entity and the members
of its respective SAG as of the Closing Date. For purposes of this Section 6.02(b)(iv), a merger
of a Spin-off Entity (or a member of its SAG) with and into any Person shall constitute a
disposition of all of the assets of such Spin-off Entity or such member.




     (c) Notwithstanding the restrictions imposed by Sections 6.02(b), during the Restriction
Period, CareFusion may proceed with any of the actions or transactions described therein, if (i)
CareFusion shall first have requested Cardinal Health to obtain a supplemental ruling in accordance
with Section 6.03(a) of this Agreement to the effect that such action or transaction will not
affect the Tax-Free Status of the Transactions and Cardinal Health shall have received such a
supplemental ruling in form and substance reasonably satisfactory to it, (ii) CareFusion shall have
provided to Cardinal Health an Unqualified Tax Opinion in form and substance reasonably
satisfactory to Cardinal Health, or (iii) Cardinal Health shall have waived in writing the
requirement to obtain such ruling or opinion. In determining whether a ruling or opinion is
satisfactory, Cardinal Health shall exercise its discretion, in good faith, solely to preserve the
Tax-Free Status of the Transactions and may consider, among other factors, the appropriateness of
any underlying assumptions or representations used as a basis for the ruling or opinion and the
views on the substantive merits.



     (d) Certain Issuances of Capital Stock. If CareFusion proposes to enter into any
Section 6.02(d) Acquisition Transaction or, to the extent CareFusion has the right to prohibit any
Section 6.02(d) Acquisition Transaction, proposes to permit any Section 6.02(d) Acquisition
Transaction to occur, in each case, during the Restriction Period, CareFusion, shall provide
Cardinal Health, no later than ten (10) days following the signing of any written agreement with
respect to any Section 6.02(d) Acquisition Transaction, with a written description of such



21









 







transaction (including the type and amount of CareFusion capital stock to be issued in such
transaction).



     (e) Tax Reporting. Each of Cardinal Health and CareFusion covenants and agrees that
it will not take, and will cause its respective Affiliates to refrain from taking, any position on
any Income Tax Return that is inconsistent with the Tax-Free Status of the Transactions.



     Section 6.03. Procedures Regarding Opinions and Rulings.



     (a) If CareFusion notifies Cardinal Health that it desires to take one of the actions
described in Sections 6.02(b) (a “Notified Action”), Cardinal Health shall cooperate with
CareFusion and use its reasonable best efforts to seek to obtain, as expeditiously as possible, a
supplemental ruling from the IRS or an Unqualified Tax Opinion for the purpose of permitting
CareFusion to take the Notified Action unless Cardinal Health shall have waived the requirement to
obtain such ruling or opinion. If such a ruling is to be sought, Cardinal Health shall apply for
such ruling and Cardinal Health and CareFusion shall jointly control the process of obtaining such
ruling. In no event shall Cardinal Health be required to file any ruling request under this
Section 6.03(a) unless CareFusion represents that (i) it has read such ruling request, and (ii) all
information and representations, if any, relating to any member of the CareFusion Group, contained
in such ruling request documents are (subject to any qualifications therein) true, correct and
complete. CareFusion shall reimburse Cardinal Health for all reasonable costs and expenses
incurred by the Cardinal Health Group in obtaining a ruling or Unqualified Tax Opinion requested by
CareFusion within ten (10) days after receiving an invoice from Cardinal Health therefor.



     (b) Cardinal Health shall have the right to obtain a supplemental ruling or an Unqualified Tax
Opinion at any time in its sole and absolute discretion. If Cardinal Health determines to obtain
such ruling or opinion, CareFusion shall (and shall cause each CareFusion Entity to) cooperate with
Cardinal Health and take any and all actions reasonably requested by Cardinal Health in connection
with obtaining such ruling or opinion (including by making any representation or reasonable
covenant or providing any materials requested by the IRS or the law firm issuing such opinion);
provided that CareFusion shall not be required to make (or cause a CareFusion Entity to make) any
representation or covenant that is inconsistent with historical facts or as to future matters or
events over which it has no control. In connection with obtaining such ruling, Cardinal Health
shall apply for such ruling and shall have sole and exclusive control over the process of obtaining
such ruling. Cardinal Health and CareFusion shall each bear its own costs and expenses in obtaining
a ruling or Unqualified Tax Opinion requested by Cardinal Health.



     (c) Except as provided in Sections 6.03(a) and (b) neither CareFusion nor any CareFusion
Affiliate shall seek any guidance from the IRS or any other Tax Authority (whether written, verbal
or otherwise) at any time concerning the Restructuring or Distribution (including the impact of any
transaction on the Restructuring or Distribution).



22









 





ARTICLE VII




COOPERATION




     Section 7.01. General Cooperation.



     (a) The Parties shall each cooperate fully (and each shall cause its respective Subsidiaries
to cooperate fully) with all reasonable requests in writing (“Information Request”) from
another Party hereto, or from an agent, representative or advisor to such Party, in connection with
the preparation and filing of Tax Returns (including the preparation of Tax Packages), claims for
Refunds, Tax Proceedings, and calculations of amounts required to be paid pursuant to this
Agreement, in each case, related or attributable to or arising in connection with Taxes of any of
the Parties or their respective Subsidiaries covered by this Agreement and the establishment of any
reserve required in connection with any financial reporting (a “Tax Matter”). Such
cooperation shall include the provision of any information reasonably necessary or helpful in
connection with a Tax Matter (“Information”) and shall include, without limitation, at each
Party’s own cost:



          (i) the provision of any Tax Returns of the Parties and their respective Subsidiaries, books,
records (including information regarding ownership and Tax basis of property), documentation and
other information relating to such Tax Returns, including accompanying schedules, related work
papers, and documents relating to rulings or other determinations by Taxing Authorities;




          (ii) the execution of any document (including any power of attorney) in connection with any
Tax Proceedings of any of the Parties or their respective Subsidiaries, or the filing of a Tax
Return or a Refund claim of the Parties or any of their respective Subsidiaries;




          (iii) the use of the Party’s reasonable best efforts to obtain any documentation in connection
with a Tax Matter; and




          (iv) the use of the Party’s reasonable best efforts to obtain any Tax Returns (including
accompanying schedules, related work papers, and documents), documents, books, records or other
information in connection with the filing of any Tax Returns of any of the Parties or their
Subsidiaries.




     Each Party shall make its employees, advisors, and facilities available, without charge, on a
reasonable and mutually convenient basis in connection with the foregoing matters.



     (b) The Parties shall comply with the procedures and requirements set forth on Schedule
7.01(b).



     Section 7.02. Retention of Records. Cardinal Health and CareFusion shall retain or
cause to be retained all Tax Returns, schedules and workpapers, and all material records or other
documents relating thereto in their possession, until sixty (60) days after the expiration of the
applicable statute of limitations (including any waivers or extensions thereof) of the taxable
periods to which such Tax Returns and other documents relate or until the expiration of any
additional period that any Party reasonably requests, in writing, with respect to specific material



23









 







records or documents. A Party intending to destroy any material records or documents shall
provide the other Party with reasonable advance notice and the opportunity to copy or take
possession of such records and documents. The Parties hereto will notify each other in writing of
any waivers or extensions of the applicable statute of limitations that may affect the period for
which the foregoing records or other documents must be retained.



ARTICLE VIII




MISCELLANEOUS




     Section 8.01. Dispute Resolution.



     (a) In the event of any dispute between the Parties as to any matter covered by this
Agreement, the Parties shall agree as to whether such dispute shall be governed by the procedures
set forth in Section 8.01(b) of this Agreement or in Article VII of the Separation Agreement as
modified by Schedule 8.01(a). If the Parties cannot agree as to which procedure will govern such
dispute, such disagreement shall be resolved pursuant to Article VII of the Separation Agreement as
modified by Schedule 8.01(a).



     (b) With respect to any dispute governed by this Section 8.01(b), the parties shall appoint a
nationally recognized independent public accounting firm (the “Accounting Firm”) to resolve
such dispute. In this regard, the Accounting Firm shall make determinations with respect to the
disputed items based solely on representations made by Cardinal Health and CareFusion and their
respective representatives, and not by independent review, and shall function only as an expert and
not as an arbitrator and shall be required to make a determination in favor of one Party only. The
Parties shall require the Accounting Firm to resolve all disputes no later than thirty (30) days
after the submission of such dispute to the Accounting Firm, but in no event later than the Due
Date for the payment of Taxes or the filing of the applicable Tax Return, if applicable, and agree
that all decisions by the Accounting Firm with respect thereto shall be final and conclusive and
binding on the Parties. The Accounting Firm shall resolve all disputes in a manner consistent with
this Agreement and, to the extent not inconsistent with this Agreement, in a manner consistent with
the Past Practices of Cardinal Health and its Subsidiaries, except as otherwise required by
applicable Law. The Parties shall require the Accounting Firm to render all determinations in
writing and to set forth, in reasonable detail, the basis for such determination. The fees and
expenses of the Accounting Firm shall be paid by the non-prevailing Party.



     Section 8.02. Tax Sharing Agreements. All Tax sharing, indemnification and similar
agreements, written or unwritten, as between Cardinal Health or a Cardinal Health Entity, on the
one hand, and CareFusion or a CareFusion Entity, on the other (other than this Agreement or any
other Transaction Document), shall be or shall have been terminated no later than the Effective
Time and, after the Effective Time, none of Cardinal Health or a Cardinal Health Entity, or
CareFusion or a CareFusion Entity shall have any further rights or obligations under any such Tax
sharing, indemnification or similar agreement.



24









 





     Section 8.03. Interest on Late Payments. With respect to any payment between the
Parties pursuant to this Agreement not made by the due date set forth in this Agreement for such
payment, the outstanding amount will accrue interest at a rate per annum equal to 9%.



     Section 8.04. Survival of Covenants. Except as otherwise contemplated by this
Agreement, all covenants and agreements of the Parties contained in this Agreement shall survive
the Effective Time and remain in full force and effect in accordance with their applicable terms,
provided, however, that the representations and warranties and all indemnification for Taxes shall
survive until sixty (60) days following the expiration of the applicable statute of limitations
(taking into account all extensions thereof), if any, of the Tax that gave rise to the
indemnification, provided, further, that, in the event that notice for indemnification has been
given within the applicable survival period, such indemnification shall survive until such time as
such claim is finally resolved.



     Section 8.05. Termination. Notwithstanding any provision to the contrary, this
Agreement may be terminated at any time prior to the Effective Time by and in the sole discretion
of Cardinal Health without the prior approval of any Person, including CareFusion. In the event of
such termination, this Agreement shall become void and no Party, or any of its officers and
directors shall have any liability to any Person by reason of this Agreement. After the Effective
Time, this Agreement may not be terminated except by an agreement in writing signed by each of the
Parties to this Agreement.



     Section 8.06. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all
other conditions and provisions of this Agreement shall remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or incapable of being enforced,
the Parties to this Agreement shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the Parties as closely as possible in a mutually acceptable manner.



     Section 8.07. Entire Agreement. Except as otherwise expressly provided in this
Agreement, this Agreement constitutes the entire agreement of the Parties hereto with respect to
the subject matter of this Agreement and supersedes all prior agreements and undertakings, both
written and oral, between or on behalf of the Parties hereto with respect to the subject matter of
this Agreement.



     Section 8.08. Assignment; No Third-Party Beneficiaries. This Agreement shall not be
assigned by any Party without the prior written consent of the other Party hereto, except that
Cardinal Health may assign (i) any or all of its rights and obligations under this Agreement to any
of its Affiliates and (ii) any or all of its rights and obligations under this Agreement in
connection with a sale or disposition of any assets or entities or lines of business of Cardinal
Health; provided, however, that, in each case, no such assignment shall release
Cardinal Health from any liability or obligation under this Agreement nor change any of the steps
in the Plan of Reorganization (as such term is defined in the Separation Agreement). Except as
provided in Article III with respect to indemnified Parties, this Agreement is for the sole benefit
of the Parties to this Agreement and their respective Subsidiaries and their permitted successors
and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon



25









 







any other Person any legal or equitable right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.



     Section 8.09. Specific Performance. In the event of any actual or threatened default
in, or breach of, any of the terms, conditions and provisions of this Agreement, the Party who is
or is to be thereby aggrieved shall have the right to specific performance and injunctive or other
equitable relief of its rights under this Agreement, in addition to any and all other rights and
remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties
agree that the remedies at law for any breach or threatened breach, including monetary damages, may
be inadequate compensation for any loss and that any defense in any action for specific performance
that a remedy at law would be adequate is waived. Any requirements for the securing or posting of
any bond with such remedy are waived by the Parties to this Agreement.



     Section 8.10. Amendment. No provision of this Agreement may be amended or modified
except by a written instrument signed by the Parties to this Agreement. No waiver by any Party of
any provision of this Agreement shall be effective unless explicitly set forth in writing and
executed by the Party so waiving. The waiver by any Party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other subsequent breach.



     Section 8.11. Rules of Construction. Interpretation of this Agreement shall be
governed by the following rules of construction: (i) words in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to include the other gender
as the context requires; (ii) references to the terms Article, Section, paragraph, clause, Exhibit
and Schedule are references to the Articles, Sections, paragraphs, clauses, exhibits and schedules
of this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,”
“hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules
and Exhibits hereto; (iv) references to “$” shall mean U.S. dollars; (v) the word “including” and
words of similar import when used in this Agreement shall mean “including without limitation,”
unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) references to
“written” or “in writing” include in electronic form; (viii) provisions shall apply, when
appropriate, to successive events and transactions; (ix) the table of contents and headings
contained in this Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement; (x) Cardinal Health and CareFusion have each
participated in the negotiation and drafting of this Agreement and if an ambiguity or question of
interpretation should arise, this Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or burdening either Party by
virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this
Agreement; and (xi) a reference to any Person includes such Person’s successors and permitted
assigns.



     Section 8.12. Counterparts. This Agreement may be executed in one or more
counterparts each of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile or portable document format (PDF) shall be as
effective as delivery of a manually executed counterpart of any such Agreement.



26









 





     Section 8.13. Coordination with the Employee Matters Agreement. To the extent any
covenants or agreements between the Parties with respect to employee withholding Taxes are set
forth in the Employee Matters Agreement, such Taxes shall be governed exclusively by the Employee
Matters Agreement and not by this Agreement.



     Section 8.14. Effective Date. This Agreement shall become effective only upon the
occurrence of the Distribution.



[The remainder of this page is intentionally left blank.]




27









 





     IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day
and year first above written.



	 	 	 	 	 	 	 
	 	 	Cardinal Health, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

  [name]

  [title]
	 	 
	 
	 	 	 	 	 	 
	 	 	CareFusion Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

  [name]

  [title]