Exhibit 3
RESTATED
BY-LAWS
OF
McKESSON CORPORATION
A Delaware Corporation
(As amended effective July 31, 1996)
ARTICLE I
Offices
Section 1. Registered Office.
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The address of the registered office of McKesson Corporation (the
"Corporation") within the State of Delaware is 1013 Centre Road,
City of Wilmington 19805-1297, County of New Castle. The name of
the registered agent of the corporation at such address is The
Prentice-Hall Corporation System, Inc.
Section 2. Other Offices.
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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.
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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.
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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.
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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.
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(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.
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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.
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(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.
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(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.
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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.
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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.
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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.
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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.
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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 eight. 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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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(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.
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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.
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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.
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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 investi-
gative (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 31st day of July, 1996.
/s/ 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.
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(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.
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(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]