Exhibit 3
RESTATED
BY-LAWS
of
McKESSON CORPORATION
A Delaware Corporation
As amended through July 26, 1995
TABLE OF CONTENTS
Page
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ARTICLE I Offices . . . . . . . . . . . . . . . . . . . 1
Section 1 Registered Office . . . . . . . . . . . . . . 1
Section 2 Other Offices . . . . . . . . . . . . . . . . 1
ARTICLE II Stockholders' Meetings . . . . . . . . . . . . 1
Section 1 Place of Meetings . . . . . . . . . . . . . . 1
Section 2 Annual Meetings . . . . . . . . . . . . . . . 1
Section 3 Special Meetings . . . . . . . . . . . . . . . 1
Section 4 Notice of Meetings . . . . . . . . . . . . . . 2
Section 5 Quorum . . . . . . . . . . . . . . . . . . . . 2
Section 6 Voting Rights . . . . . . . . . . . . . . . . 3
Section 7 Voting Procedures and Inspectors
of Elections . . . . . . . . . . . . . . . . 3
Section 8 List of Stockholders . . . . . . . . . . . . . 4
Section 9 Stockholder Proposals at
Annual Meetings . . . . . . . . . . . . . . 4
Section 10 Nominations of Persons for Election
to the Board of Directors . . . . . . . . . 5
ARTICLE III Directors . . . . . . . . . . . . . . . . . . 6
Section 1 General Powers . . . . . . . . . . . . . . . . 6
Section 2 Number and Term of Office; Removal . . . . . . 6
Section 3 Election of Directors. . . . . . . . . . . . . 7
Section 4 Vacancies . . . . . . . . . . . . . . . . . . 7
Section 5 Resignations . . . . . . . . . . . . . . . . . 7
Section 6 Annual Meetings . . . . . . . . . . . . . . . 7
Section 7 Regular Meetings . . . . . . . . . . . . . . . 7
Section 8 Special Meetings; Notice . . . . . . . . . . . 7
Section 9 Quorum and Manner of Acting . . . . . . . . . 8
Section 10 Consent in Writing . . . . . . . . . . . . . . 8
Section 11 Committees . . . . . . . . . . . . . . . . . . 8
Section 12 Telephone Meetings . . . . . . . . . . . . . . 9
Section 13 Compensation . . . . . . . . . . . . . . . . . 9
Section 14 Interested Directors . . . . . . . . . . . . . 9
Section 15 Directors Elected by Special
Class or Series . . . . . . . . . . . . . . 10
ARTICLE IV Officers . . . . . . . . . . . . . . . . . . 10
Section 1 Designation of Officers . . . . . . . . . . . 10
Section 2 Term of Office; Resignation; Removal . . . . 10
Section 3 Vacancies . . . . . . . . . . . . . . . . . . 10
Section 4 Authority of Officers . . . . . . . . . . . . 10
Section 5 Divisional Titles . . . . . . . . . . . . . . 11
Section 6 Salaries . . . . . . . . . . . . . . . . . . 11
ARTICLE V Execution of Corporate Instruments
and Voting of Securities Owned by
the Corporation . . . . . . . . . . . . . . 11
Section 1 Execution of Instruments . . . . . . . . . . 11
Section 2 Voting of Securities Owned by
the Corporation . . . . . . . . . . . . . . 11
ARTICLE VI Shares of Stock and Other Securities . . . . 12
Section 1 Form and Execution of Certificates . . . . . 12
Section 2 Lost Certificates . . . . . . . . . . . . . . 12
Section 3 Transfers . . . . . . . . . . . . . . . . . . 12
Section 4 Fixing Record Dates . . . . . . . . . . . . . 12
Section 5 Registered Stockholders . . . . . . . . . . . 13
Section 6 Regulations . . . . . . . . . . . . . . . . . 13
Section 7 Other Securities of the Corporation . . . . . 13
ARTICLE VII Corporate Seal . . . . . . . . . . . . . . . 14
ARTICLE VIII Indemnification of Officers,
Directors, Employees and Agents . . . . . . 14
Section 1 Power to Indemnify in Actions, Suits
or Proceedings other Than Those by
or in the Right of the Corporation . . . . 14
Section 2 Power to Indemnify in Actions,
Suits or Proceedings by or in the
Right of the Corporation . . . . . . . . . 14
Section 3 Authorization of Indemnification . . . . . . 15
Section 4 Good Faith Defined . . . . . . . . . . . . . 15
Section 5 Indemnification by a Court . . . . . . . . . 15
Section 6 Expenses Payable in Advance . . . . . . . . . 15
Section 7 Nonexclusivity of Indemnification and
Advancement of Expenses . . . . . . . . . 16
Section 8 Insurance . . . . . . . . . . . . . . . . . . 16
Section 9 Certain Definitions . . . . . . . . . . . . . 16
Section 10 Survival of Indemnification and
Advancement of Expenses . . . . . . . . . . 16
Section 11 Limitation on Indemnification . . . . . . . . 17
Section 12 Indemnification of Employees and Agents . . . 17
Section 13 Effect of Amendment . . . . . . . . . . . . . 17
Section 14 Authority to Enter into
Indemnification Agreements . . . . . . . . 17
ARTICLE IX Notices . . . . . . . . . . . . . . . . . . . 17
ARTICLE X Amendments . . . . . . . . . . . . . . . . . 18
RESTATED
BY-LAWS
OF
McKESSON CORPORATION
A Delaware Corporation
ARTICLE I
Offices
Section 1. Registered Office. The registered office of McKesson
Corporation (the "Corporation") in the State of Delaware shall be
in the City of Dover, County of Kent.
Section 2. Other Offices. The Corporation shall also have and
maintain an office or principal place of business at One Post
Street, San Francisco, California and may also have offices at such
other places, both within and without the State of Delaware, as the
Board of Directors may from time to time determine or the business
of the Corporation may require.
ARTICLE II
Stockholders' Meetings
Section 1. Place of Meetings. Meetings of the stockholders of
the Corporation shall be held at such place, either within or
without the State of Delaware, as may be designated from time to
time by the Board of Directors, or, if not so designated, then at
the office of the Corporation required to be maintained pursuant to
Section 2 of ARTICLE I hereof.
Section 2. Annual Meetings. The annual meetings of stockholders
of the Corporation for the purpose of election of directors and for
such other business as may lawfully come before it, shall be held
on such date and at such time as may be designated from time to
time by the Board of Directors, or, if not so designated, then at
10:00 a.m. on the last Wednesday in July in each year if not a
legal holiday, and, if a legal holiday, at the same hour and place
on the next succeeding day not a holiday.
Section 3. Special Meetings. Special Meetings of the
stockholders of the Corporation may be called, for any purpose or
purposes, by the Chairman of the Board or the President or the
Board of Directors at any time. Stockholders may not call Special
Meetings of the stockholders of the Corporation.
Section 4. Notice of Meetings.
(a)Except as otherwise provided by law or the Certificate of
Incorporation, written notice of each meeting of stockholders,
specifying the place, date and hour and purpose or purposes of the
meeting, shall be given not less than 10 nor more than 60 days
before the date of the meeting to each stockholder entitled to vote
thereat, directed to his address as it appears upon the books of
the Corporation; except that where the matter to be acted on is a
merger or consolidation of the Corporation or a sale, lease or
exchange of all or substantially all of its assets, such notice
shall be given not less than 20 nor more than 60 days prior to such
meeting.
(b)If at any meeting action is proposed to be taken which, if
taken, would entitle stockholders fulfilling the requirements of
Section 262(d) of the Delaware General Corporation Law to an
appraisal of the fair value of their shares, the notice of such
meeting shall contain a statement of that purpose and to that
effect and shall be accompanied by a copy of that statutory
section.
(c)When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is
taken unless the adjournment is for more than thirty days, or
unless after the adjournment a new record date is fixed for the
adjourned meeting, in which event a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at
the meeting.
(d)Notice of the time, place and purpose of any meeting of
stockholders may be waived in writing, either before or after such
meeting, and to the extent permitted by law, will be waived by any
stockholder by his attendance thereat, in person or by proxy. Any
stockholder so waiving notice of such meeting shall be bound by the
proceedings of any such meeting in all respects as if due notice
thereof had been given.
(e)Unless and until voted, every proxy shall be revocable at the
pleasure of the person who executed it or of his legal
representatives or assigns, except in those cases where an
irrevocable proxy permitted by statute has been given.
Section 5. Quorum. At all meetings of stockholders, except where
otherwise provided by law, the Certificate of Incorporation, or
these By-Laws, the presence, in person or by proxy duly authorized,
of the holders of a majority of the outstanding shares of stock
entitled to vote shall constitute a quorum for the transaction of
business. Shares, the voting of which at said meeting has been
enjoined, or which for any reason cannot be lawfully voted at such
meeting, shall not be counted to determine a quorum at said
meeting.
In the absence of a quorum any meeting of stockholders may be
adjourned, from time to time, by vote of the holders of a majority
of the shares represented thereat, but no other business shall be
transacted at such meeting. At such adjourned meeting at which a
quorum is present or represented any business may be transacted
which might have been transacted at the original meeting. The
stockholders present at a duly called or convened meeting, at which
a quorum is present, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum. Except as otherwise provided by law,
the Certificate of Incorporation or these By-Laws, all action taken
by the holders of a majority of the voting power represented at any
meeting at which a quorum is present shall be valid and binding
upon the Corporation.
In the event that at any meeting at which the holders of more than
one class or series of the Corporation's capital stock are entitled
to vote as a class, a quorum of any such class or series is
lacking, the holders of any class or series represented by a quorum
may proceed with the transaction of the business to be transacted
by that class or series, and if such business is the election of
directors, the director whose successors shall not have been
elected shall continue in office until their successors shall have
been duly elected and shall have qualified.
Section 6. Voting Rights.
(a)Except as otherwise provided by law, only persons in whose names
shares entitled to vote stand on the stock records of the
Corporation on the record date for determining the stockholders
entitled to vote at said meeting shall be entitled to vote at such
meeting. Shares standing in the names of two or more persons shall
be voted or represented in accordance with the determination of the
majority of such persons, or, if only one of such persons is
present in person or represented by proxy, such person shall have
the right to vote such shares and such shares shall be deemed to be
represented for the purpose of determining a quorum.
(b)Every person entitled to vote or execute consents shall have the
right to do so either in person or by an agent or agents authorized
by a written proxy executed by such person or his duly authorized
agent, which proxy shall be filed with the Secretary of the
Corporation at or before the meeting at which it is to be used.
Said proxy so appointed need not be a stockholder. No proxy shall
be voted on after three years from its date unless the proxy
provides for a longer period.
(c)Without limiting the manner in which a stockholder may authorize
another person or persons to act for him as proxy pursuant to
subsection (b) of this Section, the following shall constitute a
valid means by which a stockholder may grant such authority:
(1)A stockholder may execute a writing authorizing another
person or persons to act for him as proxy. Execution may be
accomplished by the stockholder or his authorized officer,
director, employee or agent signing such writing or causing
his or her signature to be affixed to such writing by any
reasonable means including, but not limited to, by facsimile
signature.
(2)A stockholder may authorize another person or persons to
act for him as proxy by transmitting or authorizing the
transmission of a telegram, cablegram, or other means of
electronic transmission to the person who will be the holder
of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such
transmission, provided that any such telegram, cablegram or
other means of electronic transmission must either set forth
or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. If it is
determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall
specify the information upon which they relied.
(d)Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to
subsection (c) of this Section may be substituted or used in lieu
of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire
original writing or transmission.
Section 7. Voting Procedures and Inspectors of Elections.
(a)The Corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting
and make a written report thereof. The Corporation may designate
one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able
to act at a meeting of stockholders, the person presiding at the
meeting shall appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his
ability.
(b)The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares
represented at a meeting and the validity of proxies and ballots,
(iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges
made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting,
and their count of all votes and ballots. The inspectors may
appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
(c)The date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting. No ballot, proxies or votes,
nor any revocations thereof or changes thereto, shall be accepted
by the inspectors after the closing of the polls unless the Court
of Chancery upon application by a stockholder shall determine
otherwise.
(d)In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies,
any envelopes submitted with those proxies, any information
provided in accordance with Section 212(c)(2) of the Delaware
General Corporation Law, ballots and the regular books and records
of the Corporation, except that the inspectors may consider other
reliable information for the limited purpose of reconciling proxies
and ballots submitted by or on behalf of banks, brokers, their
nominees or similar persons which represent more votes than the
holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspectors
consider other reliable information for the limited purpose
permitted herein, the inspectors at the time they make their
certification pursuant to subsection (b)(v) of this Section shall
specify the precise information considered by them including the
person or persons from whom they obtained the information, when the
information was obtained, the means by which the information was
obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
(e)The provisions of this Section 7 shall not apply to any annual
meeting of stockholders held prior to the annual meeting of
stockholders to be held in 1995.
Section 8. List of Stockholders. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at
least 10 days before every meeting of stockholders, a complete list
of the stockholders entitled to vote at said meeting, arranged in
alphabetical order, showing the address of and the number of shares
registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at
least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held and which place shall be
specified in the notice of the meeting, or, if not specified, at
the place where said meeting is to be held, and the list shall be
produced and kept at the time and place of meeting during the whole
time thereof, and may be inspected by any stockholder who is
present.
Section 9. Stockholder Proposals at Annual Meetings. At an
annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting.
To be properly brought before an annual meeting, business must be
specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors, otherwise
properly brought before the meeting by or at the direction of the
Board of Directors or otherwise properly brought before the meeting
by a stockholder. In addition to any other applicable
requirements, for business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation,
not less than 60 days nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice
or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must
be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. A
stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting,
(i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of
the stockholder proposing such business, (iii) the class or series
and number of shares of capital stock of the Corporation which are
owned beneficially or of record by the stockholder, (iv) a
description of all arrangements or understandings between the
stockholder and any other person or persons (including their names)
in connection with the proposal of such business by the stockholder
and any material interest of the stockholder in such business, and
(v) a representation that the stockholder intends to appear in
person or by proxy at the annual meeting to bring such business
before the meeting. Notwithstanding anything in the By-Laws to the
contrary, no business shall be conducted at the annual meeting
except in accordance with the procedures set forth in this Section
9, provided, however, that nothing in this Section 9 shall be
deemed to preclude discussion by any stockholder of any business
properly brought before the annual meeting in accordance with said
procedure. The Chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the
provisions of this Section 9, and if he should so determine, he
shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
Section 10. Nominations of Persons for Election to the Board of
Directors. In addition to any other applicable requirements, only
persons who are nominated in accordance with the following
procedures shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors of
the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors, by any nominating
committee or person appointed by the Board of Directors or by any
stockholder of the Corporation entitled to vote for the election of
directors at the meeting who complies with the notice procedures
set forth in this Section 10. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be
made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive
offices of the Corporation not less than 60 days nor more than 90
days prior to the meeting; provided, however, that in the event
that less than 70 days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the
close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public
disclosure was made. Such stockholder's notice shall set forth (a)
as to each person whom the stockholder proposes to nominate for
election or re-election as a director, (i) the name, age, business
address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number
of shares of the Corporation which are beneficially owned by the
person and (iv) any other information relating to the person that
is required to be disclosed in solicitations for proxies for
election of directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice, (i) the name and record address of
the stockholder, (ii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of
record by the stockholder, (iii) a description of all arrangements
or understandings between the stockholder and each proposed nominee
and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by the stockholder, (iv) a
representation that such stockholder intends to appear in person or
by proxy at the meeting to nominate the persons named in such
notice and (v) any other information relating to the stockholder
that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations
of proxies for the election of directors pursuant to Section 14 of
the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent
of each proposed nominee being named as a nominee and to serve as
a director if elected. The Corporation may require any proposed
nominee to furnish such other information as may reasonably be
required by the Corporation to determine the eligibility of such
proposed nominee to serve as a director of the Corporation. No
person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set
forth herein. These provisions shall not apply to nomination of
any persons entitled to be separately elected by holders of
preferred stock. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was
not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
ARTICLE III
Directors
Section 1. General Powers. The property, affairs and business of
the Corporation shall be managed under the direction of its Board
of Directors, which may exercise all of the powers of the
Corporation, except such as are by law or by the Certificate of
Incorporation or by these By-Laws expressly conferred upon or
reserved to the stockholders.
Section 2. Number and Term of Office; Removal. The number of
directors of the Corporation shall be fixed from time to time by
these By-Laws but in no event shall be less than three (3). Until
these By-Laws are further amended, the number of directors shall be
nine. The directors shall be divided into three classes. Each
such class shall consist, as nearly as may be possible, of
one-third of the total number of directors, and any remaining
directors shall be included within such group or groups as the
Board of Directors shall designate. At the initial annual meeting
of stockholders in 1994, a class of directors shall be elected for
a one-year term, a class of directors for a two-year term and a
class of directors for a three-year term. At each succeeding
annual meeting of stockholders, beginning in 1995, successors to
the class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of directors
is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as
nearly equal as possible, but in no case shall a decrease in the
number of directors shorten the term of any incumbent director. A
director may be removed from office for cause only and, subject to
such removal, death, resignation, retirement or disqualification,
shall hold office until the annual meeting for the year in which
his term expires and until his successor shall be elected and
qualify. No alteration, amendment or repeal of these By-Laws shall
be effective to shorten the term of any director holding office at
the time of such alteration, amendment or repeal, to permit any
such director to be removed without cause, or to increase the
number of directors in any class or in the aggregate from that
existing at the time of such alteration, amendment or repeal until
the expiration of the terms of office of all directors then holding
office, unless such alteration, amendment or repeal has been
approved by either the holders of all shares of stock entitled to
vote thereon or by a vote of a majority of the entire Board of
Directors. The provisions of this Section 2 shall not apply to
directors governed by Section 15 of this ARTICLE III.
Section 3. Election of Directors. At each meeting of the
stockholders for the election of directors, the directors to be
elected at such meeting shall be elected by a plurality of votes
given at such election.
Section 4. Vacancies. Any vacancy occurring in the Board of
Directors for any cause other than by reason of an increase in the
number of directors may be filled by a majority of the remaining
members of the Board of Directors, although such majority is less
than a quorum, or by the stockholders. Any vacancy occurring by
reason of an increase in the number of directors may be filled by
action of a majority of the entire Board of Directors or by the
stockholders. A director elected by the Board of Directors to fill
a vacancy shall be elected to hold office until the expiration of
the term for which he was elected and until his successor shall
have been elected and shall have qualified. A director elected by
the stockholders to fill a vacancy shall be elected to hold office
until the expiration of the term for which he was elected and until
his successor shall have been elected and shall have qualified.
The provisions of this Section 4 shall not apply to directors
governed by Section 15 of this ARTICLE III.
Section 5. Resignations. A director may resign at any time by
giving written notice to the Board of Directors or to the
Secretary. Such resignation shall take effect at the time
specified therein and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
Section 6. Annual Meetings. The Board of Directors, as
constituted following the vote of stockholders at any meeting of
the stockholders for the election of directors, may hold its first
meeting for the purpose of organization and the transaction of
business, if a quorum be present, immediately after such meeting
and at the same place, and notice of such meeting need not be
given. Such first meeting may be held at any other time and place
specified in a notice given as hereinafter provided for special
meetings of the Board of Directors or in a consent and waiver of
notice thereof signed by all the directors.
Section 7. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such places and times as
may be fixed from time to time by resolution of the Board.
Section 8. Special Meetings; Notice. Special meetings of the
Board of Directors may be called at any time by the Chairman of the
Board or the President and shall be called by the Secretary upon
the written request of any three directors and each special meeting
shall be held at such place and time as shall be specified in the
notice thereof. At least twenty-four (24) hours' notice of each
such special meeting shall be given to each director personally or
sent to him addressed to his residence or usual place of business
by telephone, telegram or facsimile transmission, or at least 120
hours' notice of each such special meeting shall be given to each
director by letter sent to him addressed as aforesaid or on such
shorter notice and by such means as the person or persons calling
such meeting may deem reasonably necessary or appropriate in light
of the circumstances. Any notice by letter or telegram shall be
deemed to be given when deposited in the United States mail so
addressed or when duly deposited at an appropriate office for
transmission by telegram, as the case may be. Such notice need not
state the business to be transacted at or the purpose or purposes
of such special meeting. No notice of any such special meeting of
the Board of Directors need be given to any director who attends in
person or who, in writing executed and filed with the records of
the meeting, either before or after the holding thereof, waives
such notice. No notice need be given of an adjourned meeting of
the Board of Directors.
Section 9. Quorum and Manner of Acting. A majority of the total
number of directors, but in no event less than two directors, shall
constitute a quorum for the transaction of business at any annual,
regular or special meeting of the Board of Directors. Except as
otherwise provided by law, by the Certificate of Incorporation or
by these By-Laws, the act of a majority of the directors present at
any meeting, at which a quorum is present, shall be the act of the
Board of Directors. In the absence of a quorum, a majority of the
directors present may adjourn the meeting from time to time until
a quorum be had.
Section 10. Consent in Writing. Any action required or permitted
to be taken at any meeting of the Board of Directors or any
committee thereof may be taken without a meeting, if a written
consent to such action is signed by all members of the Board or of
such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or such
committee.
Section 11. Committees.
(a)Executive Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint an Executive
Committee of not less than three members, each of whom shall be a
director. The Executive Committee, to the extent permitted by law,
shall have and may exercise when the Board of Directors is not in
session all powers of the Board in the management of the business
and affairs of the Corporation, including, without limitation, the
power and authority to declare a dividend or to authorize the
issuance of stock, except such Committee shall not have the power
or authority to amend the Certificate of Incorporation, to adopt an
agreement of merger or consolidation, to recommend to the
stockholders the sale, lease or exchange of all or substantially
all of the Corporation's property and assets, to recommend to the
stockholders of the Corporation a dissolution of the Corporation or
a revocation of a dissolution, or to amend these By-Laws.
(b)Other Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, from time to time appoint
such other committees as may be permitted by law. Such other
committees appointed by the Board of Directors shall have such
powers and perform such duties as may be prescribed by the
resolution or resolutions creating such committee, but in no event
shall any such committee have the powers denied to the Executive
Committee in these By-Laws.
(c)Term. The members of all committees of the Board of Directors
shall serve a term coexistent with that of the Board of Directors
which shall have appointed such committee. The Board, subject to
the provisions of subsections (a) or (b) of this Section 11, may at
any time increase or decrease the number of members of a committee
or terminate the existence of a committee; provided, that no
committee shall consist of less than one member. The membership of
a committee member shall terminate on the date of his death or
voluntary resignation, but the Board may at any time for any reason
remove any individual committee member and the Board may fill any
committee vacancy created by death, resignation, removal or
increase in the number of members of the committee. The Board of
Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member
at any meeting of the committee, and, in addition, in the absence
or disqualification of any member of a committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified
member.
(d)Meetings. Unless the Board of Directors shall otherwise
provide, regular meetings of the Executive Committee or any other
committee appointed pursuant to this Section 11 shall be held at
such times and places as are determined by the Board of Directors,
or by any such committee, and when notice thereof has been given to
each member of such committee, no further notice of such regular
meetings need be given thereafter; special meetings of any such
committee may be held at the principal office of the Corporation
required to be maintained pursuant to Section 2 of ARTICLE I
hereof; or at any place which has been designated from time to time
by resolution of such committee or by written consent of all
members thereof, and may be called by any director who is a member
of such committee, upon written notice to the members of such
committee of the time and place of such special meeting given in
the manner provided for the giving of written notice to members of
the Board of Directors of the time and place of special meetings of
the Board of Directors. Notice of any special meeting of any
committee may be waived in writing at any time after the meeting
and will be waived by any director by attendance thereat. A
majority of the authorized number of members of any such committee
shall constitute a quorum for the transaction of business, and the
act of a majority of those present at any meeting at which a quorum
is present shall be the act of such committee.
Section 12. Telephone Meetings. The Board of Directors or any
committee thereof may participate in a meeting by means of a
conference telephone or similar communications equipment if all
members of the Board or of such committee, as the case may be,
participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence
in person at the meeting.
Section 13. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors and/or a stated salary as
director. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
Section 14. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or
have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present
at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose if
(i) the material facts as to his or their relationship or interest
and as to the contract or transaction are disclosed or are known to
the Board of Directors or committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or
(ii) the material facts as to his or their relationship or interest
and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
Section 15. Directors Elected by Special Class or Series. To the
extent that any holders of any class or series of stock other than
Common Stock issued by the Corporation shall have the separate
right, voting as a class or series, to elect directors, the
directors elected by such class or series shall be deemed to
constitute an additional class of directors and shall have a term
of office for one year or such other period as may be designated by
the provisions of such class or series providing such separate
voting right to the holders of such class or series of stock, and
any such class of directors shall be in addition to the classes
referred to in Section 2 of this ARTICLE III. Any directors so
elected shall be subject to removal in such manner as may be
provided by law or by the Certificate of Incorporation of this
Corporation. The provisions of Sections 2 and 4 of this ARTICLE
III do not apply to directors governed by this Section 15.
ARTICLE IV
Officers
Section 1. Designation of Officers. The officers of the
Corporation, who shall be chosen by the Board of Directors at its
first meeting after each annual meeting of stockholders, shall be
a Chairman of the Board, a President, one or more Vice Presidents,
a Treasurer, a Secretary and a Controller. The Board of Directors
from time to time may choose such other officers as it shall deem
appropriate. Any one person may hold any number of offices of the
Corporation at any one time unless specifically prohibited
therefrom by law. The Chairman of the Board and the President
shall be chosen from among the directors; the other officers need
not be directors.
Section 2. Term of Office; Resignation; Removal. The term of
office of each officer shall be until the first meeting of the
Board of Directors following the next annual meeting of
stockholders and until his successor is elected and shall have
qualified, or until his death, resignation or removal, whichever is
sooner. Any officer may resign at any time by giving written
notice to the Board of Directors or to the Secretary. Such
resignation shall take effect at the time specified therein and,
unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Any
officer may be removed at any time either with or without cause by
the Board of Directors.
Section 3. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause, may be
filled for the unexpired portion of the term by the Board of
Directors.
Section 4. Authority of Officers. Subject to the power of the
Board of Directors in its discretion to change and redefine the
duties of the officers of the Corporation by resolution in such
manner as it may from time to time determine, the duties of the
officers of the Corporation shall be as follows:
(a)Chairman of the Board. The Chairman of the Board shall be the
Chief Executive Officer of the Corporation, and shall execute all
the powers and perform all the duties usual to such office.
Subject to the direction of the Board of Directors, he shall have
the responsibility for the general management of the Corporation.
The Chairman shall preside at meetings of the stockholders and the
Board of Directors. He shall recommend to the Board, for its
approval, the membership of Board committees. Subject to the
direction of the Board of Directors, he shall generally manage the
affairs of the Board and perform such other duties as are assigned
by the Board.
(b)President. The President shall be the Chief Operating Officer
of the Corporation and shall execute all the powers and perform all
the duties usual to such office. The President shall perform such
other duties as may be prescribed or assigned to him from time to
time by the Board of Directors, the Executive Committee or the
Chief Executive Officer.
(c)Other Officers. The other officers of the Corporation shall
have such powers and shall perform such duties as generally pertain
to their respective offices, as well as such powers and duties as
the Board of Directors, the Executive Committee or the Chief
Executive Officer may prescribe.
Section 5. Divisional Titles. Any one of the Chief Executive
Officer, President, or Vice President Human Resources and
Administration (each one an "Appointing Person"), may from time to
time confer upon any employee of a division of the Corporation the
title of President, Vice President, Treasurer or Secretary of such
division or any other divisional title or titles deemed
appropriate. Any such titles so conferred may be discontinued and
withdrawn at any time by any one Appointing Person. Any employee
of a division designated by such a divisional title shall have the
powers and duties with respect to such division as shall be
prescribed by the Appointing Person. The conferring, withdrawal or
discontinuance of divisional titles shall be in writing and shall
be filed with the Secretary of the Corporation.
Section 6. Salaries. The salaries and other compensation of the
principal officers of the Corporation shall be fixed from time to
time by the Board of Directors.
ARTICLE V
Execution of Corporate Instruments
and Voting of Securities Owned by the Corporation
Section 1. Execution of Instruments. The Board of Directors may
in its discretion determine the method and designate the signatory
officer or officers or other person or persons, to execute any
corporate instrument or document, or to sign the corporate name
without limitation, except where otherwise provided by law, and
such execution or signature shall be binding upon the Corporation.
All checks and drafts drawn on banks or other depositories on funds
to the credit of the Corporation or in special accounts of the
Corporation, shall be signed by such person or persons as the
Treasurer or such other person designated by the Board of Directors
for that purpose shall authorize so to do.
Section 2. Voting of Securities Owned by the Corporation. All
stock and other securities of other corporations and business
entities owned or held by the Corporation for itself, or for other
parties in any capacity, shall be voted, and all proxies with
respect thereto shall be executed, by the person authorized to do
so by resolution of the Board of Directors.
ARTICLE VI
Shares of Stock and Other Securities
Section 1. Form and Execution of Certificates. Certificates for
the shares of stock of the Corporation shall be in such form as is
consistent with the Certificate of Incorporation and applicable
law. Every holder of stock in the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation by,
the Chairman of the Board (if there be such an officer appointed),
or by the President or any Vice President and by the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary,
certifying the number of shares owned by him in the Corporation.
Any or all of the signatures on the certificate may be a facsimile.
In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent, or registrar before
such certificate is issued, it may be issued with the same effect
as if he were such officer, transfer agent, or registrar at the
date of issue. If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any class,
the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized
on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that,
except as otherwise provided in Section 202 of the General
Corporation Law of Delaware, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which
the Corporation shall issue to represent such class or series of
stock, a statement that the Corporation will furnish without charge
to each stockholder who so requests the powers, designations,
preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences
and/or rights.
Section 2. Lost Certificates. The Board of Directors may direct
a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation
alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of
stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof,
require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to indemnify the
Corporation in such manner as it shall require and/or to give the
Corporation a surety bond in such form and amount as it may direct
as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been
lost or destroyed.
Section 3. Transfers. Transfers of record of shares of stock of
the Corporation shall be made only upon its books by the holders
thereof, in person or by attorney duly authorized, and upon the
surrender of a certificate or certificates for a like number of
shares, properly endorsed.
Section 4. Fixing Record Dates. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be
more than 60 nor less than 10 days before the date of such meeting,
nor more than 60 days prior to any other action. If no record date
is fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held; (2)
the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is necessary, shall be the
day on which the first written consent is expressed; (3) the record
date for determining stockholders for any other purpose shall be at
the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
Section 5. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends, and to vote
as such owner, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of
Delaware.
Section 6. Regulations. The Board of Directors may make such
rules and regulations as it may deem expedient concerning the
issue, transfer and registration of certificates for shares of the
stock and other securities of the Corporation, and may appoint
transfer agents and registrars of any class of stock or other
securities of the Corporation.
Section 7. Other Securities of the Corporation. All bonds,
debentures and other corporate securities of the Corporation, other
than stock certificates, may be signed by the Chairman of the Board
(if there be such an officer appointed), or the President or any
Vice President or such other person as may be authorized by the
Board of Directors and the corporate seal impressed thereon or a
facsimile of such seal imprinted thereon and attested by the
signature of the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer; provided, however, that where
any such bond, debenture or other corporate security shall be
authenticated by the manual signature of a trustee under an
indenture pursuant to which such bond, debenture or other corporate
security shall be issued, the signature of the persons signing and
attesting the corporate seal on such bond, debenture or other
corporate security may be the imprinted facsimile of the signatures
of such persons. Interest coupons appertaining to any such bond,
debenture or other corporate security, authenticated by a trustee
as aforesaid, shall be signed by the Treasurer or an Assistant
Treasurer of the Corporation, or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon the
facsimile signature of such person. In case any officer who shall
have signed or attested any bond, debenture or other corporate
security or whose facsimile signature shall appear thereon shall
have ceased to be such officer before the bond, debenture or other
corporate security so signed or attested shall have been delivered,
such bond, debenture or other corporate security nevertheless may
be adopted by the Corporation and issued and delivered as though
the person who signed the same or whose facsimile signature shall
have been used thereon had not ceased to be such officer of the
Corporation.
ARTICLE VII
Corporate Seal
The corporate seal shall consist of a die bearing the name of
the Corporation and the state and date of its incorporation. Said
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
Indemnification of Officers, Directors, Employees and Agents
Section 1. Power to Indemnify in Actions, Suits or Proceedings
Other Than Those by or in the Right of the Corporation. Subject
to Section 3 of this ARTICLE VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director or
officer of the Corporation, or is or was a director or officer of
the Corporation serving at the request of the Corporation as a
director or officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful. The right to indemnification conferred
in this ARTICLE VIII shall be a contract right.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by
or in the Right of the Corporation. Subject to Section 3 of this
ARTICLE VIII, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director or officer of the Corporation, or
is or was a director or officer of the Corporation serving at the
request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit
if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification
under this ARTICLE VIII (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is
proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 1 or Section 2 of this
ARTICLE VIII, as the case may be. Such determination shall be made
(i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit
or proceeding, or (ii) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith, without the
necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination
under Section 3 of this ARTICLE VIII, a person shall be deemed to
have acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no
reasonable cause to believe his conduct was unlawful, if his action
is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to him by the
officers of the Corporation or another enterprise in the course of
their duties, or on the advice of legal counsel for the Corporation
or another enterprise or on information or records given or reports
made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section
4 shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which
such person is or was serving at the request of the Corporation as
a director, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any
way the circumstances in which a person may be deemed to have met
the applicable standard of conduct set forth in Sections 1 or 2 of
this ARTICLE VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 3 of this
ARTICLE VIII, and notwithstanding the absence of any determination
thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification
to the extent otherwise permissible under Sections 1 and 2 of this
ARTICLE VIII. The basis of such indemnification by a court shall
be a determination by such court that indemnification of the
director or officer is proper in the circumstances because he has
met the applicable standards of conduct set forth in Sections 1 or
2 of this ARTICLE VIII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of this ARTICLE
VIII nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the
director or officer seeking indemnification has not met any
applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 shall be given to the
Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking
indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a
director or officer in defending or investigating a threatened or
pending action, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized in this ARTICLE VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided
by or granted pursuant to this ARTICLE VIII shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any By-Law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever
embodied) of any court of competent jurisdiction or otherwise, both
as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in
Sections 1 and 2 of this ARTICLE VIII shall be made to the fullest
extent permitted by law. The provisions of this ARTICLE VIII shall
not be deemed to preclude the indemnification of any person who is
not specified in Sections 1 or 2 of this ARTICLE VIII but whom the
Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of Delaware,
or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or
officer of the Corporation, or is or was a director or officer of
the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the
provisions of this ARTICLE VIII.
Section 9. Certain Definitions. For purposes of this ARTICLE
VIII, references to "the Corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors or officers, so
that any person who is or was a director or officer of such
constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, shall stand in the same position under
the provisions of this ARTICLE VIII with respect to the resulting
or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
For purposes of this ARTICLE VIII, references to "fines" shall
include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of
the Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to an
employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this ARTICLE VIII.
Section 10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided
by, or granted pursuant to, this ARTICLE VIII shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director or officer and shall inure
to the benefit of the heirs, executors and administrators of such
a person.
Section 11. Limitation on Indemnification. Notwithstanding
anything contained in this ARTICLE VIII to the contrary, except for
proceedings to enforce rights to indemnification (which shall be
governed by Section 5 hereof), the Corporation shall not be
obligated to indemnify any director or officer in connection with
a proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized or consented to by the
Board of Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the
Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation
similar to those conferred in this ARTICLE VIII to directors and
officers of the Corporation.
Section 13. Effect of Amendment. Any amendment, repeal or
modification of this ARTICLE VIII shall not (a) adversely affect
any right or protection of any director or officer existing at the
time of such amendment, repeal or modification, or (b) apply to the
indemnification of any such person for liability, expense, or loss
stemming from actions or omissions occurring prior to such
amendment, repeal, or modification.
Section 14. Authority to Enter into Indemnification Agreements.
The Corporation may enter into indemnification agreements with the
directors and officers of the Corporation, including, without
limitation, any indemnification agreement in substantially the form
set forth in Exhibit 1 attached to these By-Laws.
ARTICLE IX
Notices
Whenever, under any provisions of these By-Laws, notice is required
to be given to any stockholder, the same shall be given in writing,
timely and duly deposited in the United States Mail, postage
prepaid, and addressed to his last known post office address as
shown by the stock record of the Corporation or its transfer agent.
Any notice required to be given to any director may be given by any
of the methods stated in Section 8 of ARTICLE III hereof, except
that such notice other than one which is delivered personally,
shall be sent to such address or (in the case of facsimile
telecommunication) facsimile telephone number as such director
shall have disclosed in writing to the Secretary of the
Corporation, or, in the absence of such filing, to the last known
post office address of such director. If no address of a
stockholder or director be known, such notice may be sent to the
office of the Corporation required to be maintained pursuant to
Section 2 of ARTICLE I hereof. An affidavit of mailing, executed
by a duly authorized and competent employee of the Corporation or
its transfer agent appointed with respect to the class of stock
affected, specifying the name and address or the names and
addresses of the stockholder or stockholders, director or
directors, to whom any such notice or notices was or were given,
and the time and method of giving the same, shall be conclusive
evidence of the statements therein contained. All notices given by
mail, as above provided, shall be deemed to have been given as at
the time of mailing and all notices given by telegram or other
means of electronic transmission shall be deemed to have been given
as at the sending time recorded by the telegraph company or other
electronic transmission equipment operator transmitting the same.
It shall not be necessary that the same method of giving be
employed in respect of all directors, but one permissible method
may be employed in respect of any one or more, and any other
permissible method or methods may be employed in respect of any
other or others. The period or limitation of time within which any
stockholder may exercise any option or right, or enjoy any
privilege or benefit, or be required to act, or within which any
director may exercise any power or right, or enjoy any privilege,
pursuant to any notice sent him in the manner above provided, shall
not be affected or extended in any manner by the failure of such a
stockholder or such director to receive such notice. Whenever any
notice is required to be given under the provisions of this
statutes or of the Certificate of Incorporation, or of these
By-Laws, a waiver thereof in writing signed by the person or
persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Whenever
notice is required to be given, under any provision of law or of
the Certificate of Incorporation or By-Laws of the Corporation, to
any person with whom communication is unlawful, the giving of such
notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a license
or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same
force and effect as if such notice had been duly given. In the
event that the action taken by the Corporation is such as to
require the filing of a certificate under any provision of the
Delaware General Corporation Law, the certificate shall state, if
such is the fact and if notice is required, that notice was given
to all persons entitled to receive notice except such persons with
whom communication is unlawful.
ARTICLE X
Amendments
The Board of Directors is expressly authorized to adopt, alter and
repeal the By-Laws of the Corporation in whole or in part at any
regular or special meeting of the Board of Directors, by vote of a
majority of the entire Board of Directors. Except where ARTICLE V
of the Certificate of Incorporation of the Corporation requires a
higher vote, the By-Laws may also be adopted, altered or repealed
in whole or in part at any annual or special meeting of the
stockholders by the affirmative vote of three fourths of the shares
of the Corporation outstanding and entitled to vote thereon.
CERTIFICATE OF SECRETARY
The undersigned, Vice President and Corporate Secretary of McKesson
Corporation, a Delaware corporation, hereby certifies that the
foregoing is a full, true and correct copy of the By-Laws of said
Corporation, with all amendments to date of this Certificate.
WITNESS the signature of the undersigned and the seal of the
Corporation this 26th day of July, 1995.
/s/ Nancy A. Miller
----------------------------
Nancy A. Miller
Vice President and
Corporate Secretary
EXHIBIT 1
INDEMNIFICATION AGREEMENT
AGREEMENT, effective as of ______, 19__, between McKesson
Corporation, a Delaware corporation (the "Company"), and
______________ (the "Indemnitee").
WHEREAS, it is essential to the Company to retain and attract as
directors and officers the most capable persons available.
WHEREAS, Indemnitee is a director/officer of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased
risk of litigation and other claims being asserted against
directors of public companies in today's environment;
WHEREAS, the Certificate of Incorporation and the By-laws of the
Company require the Company to indemnify and advance expenses to
its directors to the fullest extent permitted by law and the
Indemnitee has been serving and continues to serve as a director or
officer of the Company in part in reliance on such Certificate of
Incorporation and By-laws;
WHEREAS, in recognition of Indemnitee's need for substantial
protection against personal liability in order to enhance
Indemnitee's continued service to the Company in an effective
manner and Indemnitee's reliance on the aforesaid Certificate of
Incorporation and By-laws, and in part to provide Indemnitee with
specific contractual assurance that the protection promised by such
Certificate of Incorporation and By-laws will be available to
Indemnitee (regardless of, among other things, any amendment to or
revocation of such Certificate of Incorporation and By-laws or any
change in the composition of the Company's Board of Directors or
acquisition transaction relating to the Company), and in order to
induce Indemnitee to continue to provide services to the Company as
a director or officer thereof, the Company wishes to provide in
this Agreement for the indemnification of and the advancing of
expenses to Indemnitee to the fullest extent (whether partial or
complete) permitted by law and as set forth in this Agreement, and,
to the extent insurance is maintained, for the continued coverage
of Indemnitee under the Company's directors' and officers'
liability insurance policies.
NOW, THEREFORE, in consideration of the premises and of Indemnitee
continuing to serve the Company directly or, at its request, with
another enterprise, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Certain Definitions.
(a)Change in Control: shall be deemed to have occurred if (i)
any "person" (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended), other
than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock
of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing 20% or more of the
total voting power represented by the Company's then
outstanding Voting Securities, or (ii) during any period of
two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors
or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at
the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason
to constitute a majority thereof, or (iii) the stockholders of
the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or
consolidation which would result in the Voting Securities of
the Company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at
least 80% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of
transactions) of all or substantially all of the Company's
assets.
(b)Expense: include attorneys' fees and all other costs,
expenses and obligations paid or incurred in connection with
investigating, defending, being a witness in or participating
in (including on appeal), or preparing to defend, be a witness
in or participate in any Proceeding relating to any
Indemnifiable Event.
(c)Indemnifiable Event: any event or occurrence that takes
place either prior to or after the execution of this
Agreement, related to the fact that Indemnitee is or was a
director or an officer of the Company, or while a director or
officer is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of
another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, or by reason of
anything done or not done by Indemnitee in any such capacity.
(d)Potential Change in Control: shall be deemed to have
occurred if (i) the Company enters into an agreement or
arrangement, the consummation of which would result in the
occurrence of Change in Control; (ii) any person (including
the Company) publicly announces an intention to take or to
consider taking actions which if consummated would constitute
Change in Control; (iii) any person, other than a trustee or
other fiduciary holding securities under an employee benefit
plan of the Company acting in such capacity or a corporation
owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company, who is or becomes the
beneficial owner, directly or indirectly, of securities of the
Company representing 10% or more of the combined voting power
of the Company's then outstanding Voting Securities, increases
his beneficial ownership of such securities by 5% or more over
the percentage so owned by such person on the date hereof; or
(iv) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has
occurred.
(e)Proceeding: any threatened, pending or completed action,
suit or proceeding, or any inquiry, hearing or investigation,
whether conducted by the Company or any other party, that
Indemnitee in good faith believes might lead to the
institution of any such action, suit or proceeding, whether
civil, criminal, administrative, investigative or other.
(f)Reviewing Party: any appropriate person or body consisting
of a member or members of the Company's Board of Directors or
any other person or body appointed by the Board (including the
special, independent counsel referred to in Section 3) who is
not a party to the particular Proceeding with respect to which
Indemnitee is seeking indemnification.
(g)Voting Securities: any securities of the Company which
vote generally in the election of directors.
2. Agreement to Indemnify.
(a)In the event Indemnitee was, is or becomes a party to or
witness or other participant in, or is threatened to be made
a party to or witness or other participant in, a Proceeding by
reason of (or arising in part out of) an Indemnifiable Event,
the Company shall indemnify Indemnitee to the fullest extent
permitted by law, as soon as practicable but in any event no
later than thirty days after written demand is presented to
the Company, against any and all Expenses, judgments, fines,
penalties and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in
connection with or in respect of such Expenses, judgments,
fines, penalties or amounts paid in settlement) of such
Proceeding and any federal, state, local or foreign taxes
imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement (including the
creation of the Trust). Notwithstanding anything in this
Agreement to the contrary and except as provided in Section 5,
prior to a Change in Control Indemnitee shall not be entitled
to indemnification pursuant to this Agreement in connection
with any Proceeding initiated by Indemnitee against the
Company or any director or officer of the Company unless the
Company has joined in or consented to the initiation of such
Proceeding. If so requested by Indemnitee, the Company shall
advance (within ten business days of such request) any and all
Expenses to Indemnitee (an "Expense Advance").
(b)Notwithstanding the foregoing, (i) the obligations of the
Company under Section 2(a) shall be subject to the condition
that the Reviewing Party shall not have determined (in a
written opinion, in any case in which the special, independent
counsel referred to in Section 3 hereof is involved) that
Indemnitee would not be permitted to be indemnified under
applicable law, and (ii) the obligation of the Company to make
an Expense Advance pursuant to Section 2(a) shall be subject
to the condition that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be
permitted to be so indemnified under applicable law, the
Company shall be entitled to be reimbursed by Indemnitee (who
hereby agrees to reimburse the Company) for all such amounts
theretofore paid; provided, however, that if Indemnitee has
commenced legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should
be indemnified under applicable law, any determination made by
the Reviewing Party that Indemnitee would not be permitted to
be indemnified under applicable law shall not be binding and
Indemnitee shall not be required to reimburse the Company for
any Expense Advance until a final judicial determination is
made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). Indemnitee's
obligation to reimburse the Company for Expense Advances shall
be unsecured and no interest shall be charged thereon. If
there has not been a Change in Control the Reviewing Party
shall be selected by the Board of Directors, and if there has
been such a Change in Control (other than a Change in Control
which has been approved by a majority of the Company's Board
of Directors who were directors immediately prior to such
Change in Control), the Reviewing Party shall be the special,
independent counsel referred to in Section 3 hereof. If there
has been no determination by the Reviewing Party or if the
Reviewing Party determines that Indemnitee substantively would
not be permitted to be indemnified in whole or in part under
applicable law, Indemnitee shall have the right to commence
litigation in any court in the States of California or
Delaware having subject matter jurisdiction thereof and in
which venue is proper seeking an initial determination by the
court or challenging any such determination by the Reviewing
Party or any aspect thereof, and the Company hereby consents
to service of process and to appear in any such proceeding.
Any determination by the Reviewing Party otherwise shall be
conclusive and binding on the Company and Indemnitee.
3. Change in Control. The Company agrees that if there is a
Change in Control of the Company (other than a Change in Control
which has been approved by a majority of the Company's Board of
Directors who were directors immediately prior to such Change in
Control) then with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnity payments and
Expense Advances under this Agreement or any other agreement or
under applicable law or the Company's Certificate of Incorporation
or By-Laws now or hereafter in effect relating to indemnification
for Indemnifiable Events, the Company shall seek legal advice only
from special, independent counsel selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably
withheld), and who has not otherwise performed services for the
Company or the Indemnitee (other than in connection with such
matters) within the last five years. Such independent counsel
shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an
action to determine Indemnitee's rights under this Agreement. Such
counsel, among other things, shall render its written opinion to
the Company and Indemnitee as to whether and to what extent the
Indemnitee would be permitted to be indemnified under applicable
law. The Company agrees to pay the reasonable fees of the special,
independent counsel referred to above and to indemnify fully such
counsel against any and all expenses (including attorneys' fees),
claims, liabilities and damages arising out of or relating to this
Agreement or the engagement of special, independent counsel
pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in
Control, the Company shall, upon written request by Indemnitee,
create a Trust for the benefit of the Indemnitee and from time to
time upon written request of Indemnitee shall fund such Trust in an
amount sufficient to satisfy any and all Expenses reasonably
anticipated at the time of each such request to be incurred in
connection with investigating, preparing for and defending any
Proceeding relating to an Indemnifiable event, and any and all
judgments, fines, penalties and settlement amounts of any and all
Proceedings relating to an Indemnifiable Event from time to time
actually paid or claimed, reasonably anticipated or proposed to be
paid. The amount or amounts to be deposited in the Trust pursuant
to the foregoing funding obligation shall be determined by the
Reviewing Party, in any case in which the special, independent
counsel referred to above is involved. The terms of the Trust
shall provide that upon a Change in Control (i) the Trust shall not
be revoked or the principal thereof invaded, without the written
consent of the Indemnitee, (ii) the Trustee shall advance, within
ten business days of a request by the Indemnitee, any and all
Expenses to the Indemnitee (and the Indemnitee hereby agrees to
reimburse the Trust under the circumstances under which the
Indemnitee would be required to reimburse the Company under Section
2(b) of this Agreement), (iii) the Trust shall continue to be
funded by the Company in accordance with the funding obligation set
forth above, (iv) the Trustee shall promptly pay to the Indemnitee
all amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (v)
all unexpended funds in such Trust shall revert to the Company upon
a final determination by the Reviewing Party or a court of
competent jurisdiction, as the case may be, that the Indemnitee has
been fully indemnified under the terms of this Agreement. The
Trustee shall be chosen by the Indemnitee. Nothing in this Section
4 shall relieve the Company of any of its obligations under this
Agreement. All income earned on the assets held in the Trust shall
be reported as income by the Company for federal, state, local and
foreign tax purposes.
5. Indemnification for Expenses Incurred in Enforcing this
Agreement. The Company shall indemnify Indemnitee against any and
all expenses (including attorneys' fees), and, if requested by
Indemnitee, shall (within ten business days of such request)
advance such expenses to Indemnitee, which are incurred by
Indemnitee in connection with any claim asserted against or action
brought by Indemnitee for (i) indemnification or advance payment of
Expenses by the Company under this Agreement or any other agreement
or under applicable law or the Company's Certificate of
Incorporation or By-laws now or hereafter in effect relating to
indemnification for Indemnifiable Events and/or (ii) recovery under
any directors' and officers' liability insurance policies
maintained by the Company, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
6. Partial Indemnity. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for
some or a portion of the Expenses, judgments, fines, penalties and
amounts paid in settlement of a Proceeding but not, however, for
all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion thereof to which Indemnitee is
entitled. Moreover, notwithstanding any other provision of this
Agreement, to the extent that Indemnitee has been successful on the
merits or otherwise in defense of any or all Proceedings relating
in whole or in part to an Indemnifiable Event or in defense of any
issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses incurred in
connection therewith.
7. Defense to Indemnification, Burden of Proof and Presumptions.
It shall be a defense to any action brought by the Indemnitee
against the Company to enforce this Agreement (other than an action
brought to enforce a claim for expenses incurred in defending a
Proceeding in advance of its final disposition where the required
undertaking has been tendered to the Company) that the Indemnitee
has not met the standards of conduct that make it permissible under
the Delaware General Corporation Law for the Company to indemnify
the Indemnitee for the amount claimed. In connection with any
determination by the Reviewing Party or otherwise as to whether the
Indemnitee is entitled to be indemnified hereunder, the burden of
proving such a defense shall be on the Company. Neither the
failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action by the
Indemnitee that indemnification of the claimant is proper under the
circumstances because he or she has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the
Indemnitee had not met such applicable standard of conduct, shall
be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct. For
purposes of this Agreement, the termination of any claim, action,
suit or proceeding, by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have
any particular belief or that a court has determined that
indemnification is not permitted by applicable law.
8. Non-exclusivity. The rights of the Indemnitee hereunder shall
be in addition to any other rights Indemnitee may have under the
Company's Certificate of Incorporation or By-laws or the Delaware
General Corporation Law or otherwise. To the extent that a change
in the Delaware General Corporation Law (whether by statute or
judicial decision) permits greater indemnification by agreement
than would be afforded currently under the Company's Certificate of
Incorporation and By-laws and this Agreement, it is the intent of
the parties hereto that Indemnitee shall enjoy by this Agreement
the greater benefits so afforded by such change.
9. Liability Insurance. To the extent the Company maintains an
insurance policy or policies providing directors' and officers'
liability insurance, Indemnitee shall be covered by such policy or
policies, in accordance with its or their terms, to the maximum
extent of the coverage available for any Company director or
officer.
10. Period of Limitations. No legal action shall be brought and
no cause of action shall be asserted by or on behalf of the Company
or any affiliate of the Company against Indemnitee, Indemnitee's
spouse, heirs, executors or personal or legal representatives after
the expiration of two years from the date of accrual of such cause
of action, or such longer period as may be required by state law
under the circumstances, and any claim or cause of action of the
Company or its affiliate shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such
period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action
such shorter period shall govern.
11. Amendment of this Agreement. No supplement, modification or
amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor
shall such waiver constitute a continuing waiver.
12. Subrogation. In the event of payment under this Agreement,
the Company shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, who shall execute all
papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents
necessary to enable the Company effectively to bring suit to
enforce such rights.
13. No Duplication of Payments. The Company shall not be liable
under this Agreement to make any payment in connection with any
claim made against Indemnitee to the extent Indemnitee has
otherwise actually received payment (under any insurance policy,
By-law or otherwise) of the amounts otherwise indemnifiable
hereunder.
14. Settlement of Claims. The Company shall not be liable to
indemnify Indemnitee under this Agreement for any amounts paid in
settlement of any action or claim effected without the Company's
written consent. The Company shall not settle any action or claim
in any manner which would impose any penalty or limitation on
Indemnitee without Indemnitee's written consent. Neither the
Company nor the Indemnitee will unreasonably withhold their consent
to any proposed settlement. The Company shall not be liable to
indemnify the Indemnitee under this Agreement with regard to any
judicial award if the Company was not given a reasonable and timely
opportunity, at its expense, to participate in the defense of such
action.
15. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto
and their respective successors, assigns, including any direct or
indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business and/or assets of the
Company, spouses, heirs, and personal and legal representatives.
The Company shall require and cause any successor (whether direct
or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all, or a substantial part, of the business
and/or assets of the Company, by written agreement in form and
substance satisfactory to the Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such
succession had taken place. This Agreement shall continue in
effect regardless of whether Indemnitee continues to serve as a
director or officer of the Company or of any other enterprise at
the Company's request.
16. Severability. The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including
any provision within a single section, paragraph or sentence) is
held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain
enforceable to the fullest extent permitted by law. Furthermore,
to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of this Agreement
containing any provision held to be invalid, void or otherwise
unenforceable, that is not itself invalid, void or unenforceable)
shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.
17. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware applicable to contracts made and to be performed in such
State without giving effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the _______________ day of
__________________, 19___.
McKESSON CORPORATION
By: ______________________
Name:
Title:
__________________________
[Indemnitee]