\nARTICLE VI SHARES OF STOCK AND OTHER SECURITIES……………………..12
\n Section 1 FORM AND EXECUTION OF CERTIFICATES……………………….12
\n Section 2 LOST CERTIFICATES………………………………………12
\n Section 3 TRANSFERS……………………………………………..12
\n Section 4 FIXING RECORD DATES…………………………………….12
\n Section 5 REGISTERED STOCKHOLDERS…………………………………13
\n Section 6 REGULATIONS……………………………………………13
\n Section 7 OTHER SECURITIES OF THE CORPORATION………………………13<\/p>\nARTICLE VII CORPORATE SEAL…………………………………………14<\/p>\n
ARTICLE VIII INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES
\n AND AGENTS…………………………………………..14
\n Section 1 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER
\n THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION………..14
\n Section 2 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY
\n OR IN THE RIGHT OF THE CORPORATION …………………….14
\n Section 3 AUTHORIZATION OF INDEMNIFICATION ………………………..15
\n Section 4 GOOD FAITH DEFINED …………………………………….15
\n Section 5 INDEMNIFICATION BY A COURT ……………………………..15
\n Section 6 EXPENSES PAYABLE IN ADVANCE …………………………….15
\n Section 7 NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT
\n OF EXPENSES …………………………………………16
\n Section 8 INSURANCE……………………………………………..16
\n Section 9 CERTAIN DEFINITIONS…………………………………….16
\n Section 10 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES ……16
\n Section 11 LIMITATION ON INDEMNIFICATION …………………………..17
\n Section 12 INDEMNIFICATION OF EMPLOYEES AND AGENTS…………………..17
\n Section 13 EFFECT OF AMENDMENT ……………………………………17
\n Section 14 AUTHORITY TO ENTER INTO INDEMNIFICATION AGREEMENTS ………..17<\/p>\n
ARTICLE IX NOTICES……………………………………………….17<\/p>\n
ARTICLE X AMENDMENTS…………………………………………….18
\n<\/c><\/s><\/table>\n
ii<\/p>\n
4<\/p>\n
RESTATED<\/p>\n
BY-LAWS<\/p>\n
OF<\/p>\n
MCKESSON HBOC, INC.<\/p>\n
A DELAWARE CORPORATION<\/p>\n
ARTICLE I<\/p>\n
OFFICES<\/p>\n
SECTION 1. REGISTERED OFFICE. The address of the registered office of McKesson
\nHBOC, Inc. (the “Corporation”) within the State of Delaware is 1013 Centre Road,
\nCity of Wilmington 19805-1297, County of New Castle. The name of the registered
\nagent of the Corporation at such address is The Prentice-Hall Corporation
\nSystem, Inc.<\/p>\n
SECTION 2. OTHER OFFICES. The Corporation shall also have and maintain an office
\nor principal place of business at One Post Street, San Francisco, California and
\nmay also have offices at such other places, both within and without the State of
\nDelaware, as the Board of Directors may from time to time determine or the
\nbusiness of the Corporation may require.<\/p>\n
ARTICLE II<\/p>\n
STOCKHOLDERS’ MEETINGS<\/p>\n
SECTION 1. PLACE OF MEETINGS. Meetings of the stockholders of the Corporation
\nshall be held at such place, either within or without the State of Delaware, as
\nmay be designated from time to time by the Board of Directors, or, if not so
\ndesignated, then at the office of the Corporation required to be maintained
\npursuant to Section 2 of ARTICLE I hereof.<\/p>\n
SECTION 2. ANNUAL MEETINGS. The annual meetings of stockholders of the
\nCorporation for the purpose of election of directors and for such other business
\nas may lawfully come before it, shall be held on such date and at such time as
\nmay be designated from time to time by the Board of Directors, or, if not so
\ndesignated, then at 10:00 a.m. on the last Wednesday in July in each year if not
\na legal holiday, and, if a legal holiday, at the same hour and place on the next
\nsucceeding day not a holiday.<\/p>\n
SECTION 3. SPECIAL MEETINGS. Special Meetings of the stockholders of the
\nCorporation may be called, for any purpose or purposes, by the Chairman of the
\nBoard or the President or the Board of Directors at any time. Stockholders may
\nnot call Special Meetings of the stockholders of the Corporation.<\/p>\n
1
\n 5<\/p>\n
SECTION 4. NOTICE OF MEETINGS.<\/p>\n
(a) Except as otherwise provided by law or the Certificate of Incorporation,
\nwritten notice of each meeting of stockholders, specifying the place, date and
\nhour and purpose or purposes of the meeting, shall be given not less than 10 nor
\nmore than 60 days before the date of the meeting to each stockholder entitled to
\nvote thereat, directed to his address as it appears upon the books of the
\nCorporation; except that where the matter to be acted on is a merger or
\nconsolidation of the Corporation or a sale, lease or exchange of all or
\nsubstantially all of its assets, such notice shall be given not less than 20 nor
\nmore than 60 days prior to such meeting.<\/p>\n
(b) If at any meeting action is proposed to be taken which, if taken, would
\nentitle stockholders fulfilling the requirements of Section 262(d) of the
\nDelaware General Corporation Law to an appraisal of the fair value of their
\nshares, the notice of such meeting shall contain a statement of that purpose and
\nto that effect and shall be accompanied by a copy of that statutory section.<\/p>\n
(c) When a meeting is adjourned to another time or place, notice need not be
\ngiven of the adjourned meeting if the time and place thereof are announced at
\nthe meeting at which the adjournment is taken unless the adjournment is for more
\nthan thirty days, or unless after the adjournment a new record date is fixed for
\nthe adjourned meeting, in which event a notice of the adjourned meeting shall be
\ngiven to each stockholder of record entitled to vote at the meeting.<\/p>\n
(d) Notice of the time, place and purpose of any meeting of stockholders may be
\nwaived in writing, either before or after such meeting, and to the extent
\npermitted by law, will be waived by any stockholder by his attendance thereat,
\nin person or by proxy. Any stockholder so waiving notice of such meeting shall
\nbe bound by the proceedings of any such meeting in all respects as if due notice
\nthereof had been given.<\/p>\n
(e) Unless and until voted, every proxy shall be revocable at the pleasure of
\nthe person who executed it or of his legal representatives or assigns, except in
\nthose cases where an irrevocable proxy permitted by statute has been given.<\/p>\n
SECTION 5. QUORUM. At all meetings of stockholders, except where otherwise
\nprovided by law, the Certificate of Incorporation, or these By-Laws, the
\npresence, in person or by proxy duly authorized, of the holders of a majority of
\nthe outstanding shares of stock entitled to vote shall constitute a quorum for
\nthe transaction of business. Shares, the voting of which at said meeting has
\nbeen enjoined, or which for any reason cannot be lawfully voted at such meeting,
\nshall not be counted to determine a quorum at said meeting.<\/p>\n
In the absence of a quorum any meeting of stockholders may be adjourned, from
\ntime to time, by vote of the holders of a majority of the shares represented
\nthereat, but no other business shall be transacted at such meeting. At such
\nadjourned meeting at which a quorum is present or represented any business may
\nbe transacted which might have been transacted at the original meeting. The
\nstockholders present at a duly called or convened meeting, at which a quorum is
\npresent, may continue to transact business until adjournment, notwithstanding
\nthe withdrawal of enough stockholders to leave less than a quorum. Except as
\notherwise provided by law, the Certificate of Incorporation or these By-Laws,
\nall action taken by the holders of a majority of the voting power represented at
\nany meeting at which a quorum is present shall be valid and binding upon the
\nCorporation.<\/p>\n
In the event that at any meeting at which the holders of more than one class or
\nseries of the Corporation’s capital stock are entitled to vote as a class, a
\nquorum of any such class or series is lacking, the holders of any class or
\nseries represented by a quorum may proceed with the transaction of the business
\nto be<\/p>\n
2
\n 6<\/p>\n
transacted by that class or series, and if such business is the election of
\ndirectors, the director whose successors shall not have been elected shall
\ncontinue in office until their successors shall have been duly elected and shall
\nhave qualified.<\/p>\n
SECTION 6. VOTING RIGHTS.<\/p>\n
(a) Except as otherwise provided by law, only persons in whose names shares
\nentitled to vote stand on the stock records of the Corporation on the record
\ndate for determining the stockholders entitled to vote at said meeting shall be
\nentitled to vote at such meeting. Shares standing in the names of two or more
\npersons shall be voted or represented in accordance with the determination of
\nthe majority of such persons, or, if only one of such persons is present in
\nperson or represented by proxy, such person shall have the right to vote such
\nshares and such shares shall be deemed to be represented for the purpose of
\ndetermining a quorum.<\/p>\n
(b) Every person entitled to vote or execute consents shall have the right to do
\nso either in person or by an agent or agents authorized by a written proxy
\nexecuted by such person or his duly authorized agent, which proxy shall be filed
\nwith the Secretary of the Corporation at or before the meeting at which it is to
\nbe used. Said proxy so appointed need not be a stockholder. No proxy shall be
\nvoted on after three years from its date unless the proxy provides for a longer
\nperiod.<\/p>\n
(c) Without limiting the manner in which a stockholder may authorize another
\nperson or persons to act for him as proxy pursuant to subsection (b) of this
\nSection, the following shall constitute a valid means by which a stockholder may
\ngrant such authority:<\/p>\n
(1) A stockholder may execute a writing authorizing another person or
\n persons to act for him as proxy. Execution may be accomplished by the
\n stockholder or his authorized officer, director, employee or agent signing
\n such writing or causing his or her signature to be affixed to such writing
\n by any reasonable means including, but not limited to, by facsimile
\n signature.<\/p>\n
(2) A stockholder may authorize another person or persons to act for him
\n as proxy by transmitting or authorizing the transmission of a telegram,
\n cablegram, or other means of electronic transmission to the person who
\n will be the holder of the proxy or to a proxy solicitation firm, proxy
\n support service organization or like agent duly authorized by the person
\n who will be the holder of the proxy to receive such transmission, provided
\n that any such telegram, cablegram or other means of electronic
\n transmission must either set forth or be submitted with information from
\n which it can be determined that the telegram, cablegram or other
\n electronic transmission was authorized by the stockholder. If it is
\n determined that such telegrams, cablegrams or other electronic
\n transmissions are valid, the inspectors or, if there are no inspectors,
\n such other persons making that determination shall specify the information
\n upon which they relied.<\/p>\n
(d) Any copy, facsimile telecommunication or other reliable reproduction of the
\nwriting or transmission created pursuant to subsection (c) of this Section may
\nbe substituted or used in lieu of the original writing or transmission for any
\nand all purposes for which the original writing or transmission could be used,
\nprovided that such copy, facsimile telecommunication or other reproduction shall
\nbe a complete reproduction of the entire original writing or transmission.<\/p>\n
SECTION 7. VOTING PROCEDURES AND INSPECTORS OF ELECTIONS.<\/p>\n
(a) The Corporation shall, in advance of any meeting of stockholders, appoint
\none or more inspectors to act at the meeting and make a written report thereof.
\nThe Corporation may designate one or more persons as alternate inspectors to
\nreplace any inspector who fails to act. If no inspector or alternate is<\/p>\n
3
\n 7<\/p>\n
able to act at a meeting of stockholders, the person presiding at the meeting
\nshall appoint one or more inspectors to act at the meeting. Each inspector,
\nbefore entering upon the discharge of his duties, shall take and sign an oath
\nfaithfully to execute the duties of inspector with strict impartiality and
\naccording to the best of his ability.<\/p>\n
(b) The inspectors shall (i) ascertain the number of shares outstanding and the
\nvoting power of each, (ii) determine the shares represented at a meeting and the
\nvalidity of proxies and ballots, (iii) count all votes and ballots, (iv)
\ndetermine and retain for a reasonable period a record of the disposition of any
\nchallenges made to any determination by the inspectors, and (v) certify their
\ndetermination of the number of shares represented at the meeting, and their
\ncount of all votes and ballots. The inspectors may appoint or retain other
\npersons or entities to assist the inspectors in the performance of the duties of
\nthe inspectors.<\/p>\n
(c) The date and time of the opening and the closing of the polls for each
\nmatter upon which the stockholders will vote at a meeting shall be announced at
\nthe meeting. No ballot, proxies or votes, nor any revocations thereof or changes
\nthereto, shall be accepted by the inspectors after the closing of the polls
\nunless the Court of Chancery upon application by a stockholder shall determine
\notherwise.<\/p>\n
(d) In determining the validity and counting of proxies and ballots, the
\ninspectors shall be limited to an examination of the proxies, any envelopes
\nsubmitted with those proxies, any information provided in accordance with
\nSection 212(c)(2) of the Delaware General Corporation Law, ballots and the
\nregular books and records of the Corporation, except that the inspectors may
\nconsider other reliable information for the limited purpose of reconciling
\nproxies and ballots submitted by or on behalf of banks, brokers, their nominees
\nor similar persons which represent more votes than the holder of a proxy is
\nauthorized by the record owner to cast or more votes than the stockholder holds
\nof record. If the inspectors consider other reliable information for the limited
\npurpose permitted herein, the inspectors at the time they make their
\ncertification pursuant to subsection (b)(v) of this Section shall specify the
\nprecise information considered by them including the person or persons from whom
\nthey obtained the information, when the information was obtained, the means by
\nwhich the information was obtained and the basis for the inspectors’ belief that
\nsuch information is accurate and reliable.<\/p>\n
(e) The provisions of this Section 7 shall not apply to any annual meeting of
\nstockholders held prior to the annual meeting of stockholders to be held in
\n1995.<\/p>\n
SECTION 8. LIST OF STOCKHOLDERS. The officer who has charge of the stock ledger
\nof the Corporation shall prepare and make, at least 10 days before every meeting
\nof stockholders, a complete list of the stockholders entitled to vote at said
\nmeeting, arranged in alphabetical order, showing the address of and the number
\nof shares registered in the name of each stockholder. Such list shall be open to
\nthe examination of any stockholder, for any purpose germane to the meeting,
\nduring ordinary business hours, for a period of at least 10 days prior to the
\nmeeting, either at a place within the city where the meeting is to be held and
\nwhich place shall be specified in the notice of the meeting, or, if not
\nspecified, at the place where said meeting is to be held, and the list shall be
\nproduced and kept at the time and place of meeting during the whole time
\nthereof, and may be inspected by any stockholder who is present.<\/p>\n
SECTION 9. STOCKHOLDER PROPOSALS AT ANNUAL MEETINGS. At an annual meeting of the
\nstockholders, only such business shall be conducted as shall have been properly
\nbrought before the meeting. To be properly brought before an annual meeting,
\nbusiness must be specified in the notice of meeting (or any supplement thereto)
\ngiven by or at the direction of the Board of Directors, otherwise properly
\nbrought before the meeting by or at the direction of the Board of Directors or
\notherwise properly<\/p>\n
4
\n 8<\/p>\n
brought before the meeting by a stockholder of the Corporation (i) who is a
\nstockholder of record on the date of the giving of the notice provided for in
\nthis Section 9 and on the record date for the determination of stockholders
\nentitled to vote at such annual meeting and (ii) who complies with the notice
\nprocedures set forth in this Section 9. In addition to any other applicable
\nrequirements, for business to be properly brought before an annual meeting by a
\nstockholder, the stockholder must have given timely notice thereof in writing to
\nthe Secretary of the Corporation. To be timely, a stockholder’s notice to the
\nSecretary must be delivered to or mailed and received at the principal executive
\noffices of the Corporation, not less than 90 days nor more than 120 days prior
\nto the anniversary date of the immediately preceding annual meeting of
\nstockholders; provided, however, that in the event that the annual meeting is
\ncalled for a date that is not within 30 days before or after such anniversary
\ndate, notice by the stockholder in order to be timely must be so received not
\nlater than the close of business on the 10th day following the day on which such
\nnotice of the date of the annual meeting was mailed or such public disclosure of
\nthe date of the annual meeting was made, whichever first occurs. A stockholder’s
\nnotice to the Secretary shall set forth as to each matter the stockholder
\nproposes to bring before the annual meeting, (i) a brief description of the
\nbusiness desired to be brought before the annual meeting and the reasons for
\nconducting such business at the annual meeting, (ii) the name and record address
\nof the stockholder proposing such business, (iii) the class or series and number
\nof shares of capital stock of the Corporation which are owned beneficially or of
\nrecord by the stockholder, (iv) a description of all arrangements or
\nunderstandings between the stockholder and any other person or persons
\n(including their names) in connection with the proposal of such business by the
\nstockholder and any material interest of the stockholder in such business, and
\n(v) a representation that the stockholder intends to appear in person or by
\nproxy at the annual meeting to bring such business before the meeting.<\/p>\n
Notwithstanding anything in the By-Laws to the contrary, no business shall be
\nconducted at the annual meeting except in accordance with the procedures set
\nforth in this Section 9, provided, however, that nothing in this Section 9 shall
\nbe deemed to preclude discussion by any stockholder of any business properly
\nbrought before the annual meeting in accordance with said procedure.<\/p>\n
The Chairman of an annual meeting shall, if the facts warrant, determine and
\ndeclare to the meeting that business was not properly brought before the meeting
\nin accordance with the provisions of this Section 9, and if he should so
\ndetermine, he shall so declare to the meeting and any such business not properly
\nbrought before the meeting shall not be transacted.<\/p>\n
SECTION 10. NOMINATIONS OF PERSONS FOR ELECTION TO THE BOARD OF DIRECTORS. In
\naddition to any other applicable requirements, only persons who are nominated in
\naccordance with the following procedures shall be eligible for election as
\ndirectors. Nominations of persons for election to the Board of Directors of the
\nCorporation may be made at a meeting of stockholders by or at the direction of
\nthe Board of Directors, by any nominating committee or person appointed by the
\nBoard of Directors or by any stockholder of the Corporation (i) who is a
\nstockholder of record on the date of the giving of the notice provided for in
\nthis Section 10 and on the record date for the determination of stockholders
\nentitled to vote at such annual meeting and (ii) who complies with the notice
\nprocedures set forth in this Section 10. Such nominations, other than those made
\nby or at the direction of the Board of Directors, shall be made pursuant to
\ntimely notice in writing to the Secretary of the Corporation. To be timely, a
\nstockholder’s notice to the Secretary must be delivered to or mailed and
\nreceived at the principal executive offices of the Corporation not less than 90
\ndays nor more than 120 days prior to the anniversary date of the immediately
\npreceding annual meeting of stockholders; provided, however, that in the event
\nthat the annual meeting is called for a date that is not within 30 days before
\nor after such anniversary date, notice by the stockholder in order to be timely
\nmust be so received not later than the close of business on the 10th day
\nfollowing the day on which such notice of the date of the annual meeting was
\nmailed or such public disclosure of the date of the annual meeting was made,
\nwhichever first occurs. Such stockholder’s notice shall set forth (a)<\/p>\n
5
\n 9<\/p>\n
as to each person whom the stockholder proposes to nominate for election or
\nre-election as a director, (i) the name, age, business address and residence
\naddress of the person, (ii) the principal occupation or employment of the
\nperson, (iii) the class and number of shares of the Corporation which are
\nbeneficially owned by the person and (iv) any other information relating to the
\nperson that is required to be disclosed in solicitations for proxies for
\nelection of directors pursuant to Section 14 of the Securities Exchange Act of
\n1934, as amended (the “Exchange Act”), and the rules and regulations promulgated
\nthereunder; and (b) as to the stockholder giving the notice, (i) the name and
\nrecord address of the stockholder, (ii) the class or series and number of shares
\nof capital stock of the Corporation which are owned beneficially or of record by
\nthe stockholder, (iii) a description of all arrangements or understandings
\nbetween the stockholder and each proposed nominee and any other person or
\npersons (including their names) pursuant to which the nomination(s) are to be
\nmade by the stockholder, (iv) a representation that such stockholder intends to
\nappear in person or by proxy at the meeting to nominate the persons named in
\nsuch notice and (v) any other information relating to the stockholder that would
\nbe required to be disclosed in a proxy statement or other filings required to be
\nmade in connection with solicitations of proxies for the election of directors
\npursuant to Section 14 of the Exchange Act and the rules and regulations
\npromulgated thereunder. Such notice must be accompanied by a written consent of
\neach proposed nominee being named as a nominee and to serve as a director if
\nelected. The Corporation may require any proposed nominee to furnish such other
\ninformation as may reasonably be required by the Corporation to determine the
\neligibility of such proposed nominee to serve as a director of the Corporation.
\nNo person shall be eligible for election as a director of the Corporation unless
\nnominated in accordance with the procedures set forth herein. These provisions
\nshall not apply to nomination of any persons entitled to be separately elected
\nby holders of preferred stock.<\/p>\n
The Chairman of the meeting shall, if the facts warrant, determine and declare
\nto the meeting that a nomination was not made in accordance with the foregoing
\nprocedure, and if he should so determine, he shall so declare to the meeting and
\nthe defective nomination shall be disregarded.<\/p>\n
ARTICLE III<\/p>\n
DIRECTORS<\/p>\n
SECTION 1. GENERAL POWERS. The property, affairs and business of the Corporation
\nshall be managed under the direction of its Board of Directors, which may
\nexercise all of the powers of the Corporation, except such as are by law or by
\nthe Certificate of Incorporation or by these By-Laws expressly conferred upon or
\nreserved to the stockholders.<\/p>\n
SECTION 2. NUMBER AND TERM OF OFFICE; REMOVAL. The number of directors of the
\nCorporation shall be fixed from time to time by these By-Laws but in no event
\nshall be less than three (3). Until these By-Laws are further amended, the
\nnumber of directors shall be twelve (12). The directors shall be divided into
\nthree classes. Each such class shall consist, as nearly as may be possible, of
\none-third of the total number of directors, and any remaining directors shall be
\nincluded within such group or groups as the Board of Directors shall designate.
\nAt the initial annual meeting of stockholders in 1994, a class of directors
\nshall be elected for a one-year term, a class of directors for a two-year term
\nand a class of directors for a three-year term. At each succeeding annual
\nmeeting of stockholders, beginning in 1995, successors to the class of directors
\nwhose term expires at that annual meeting shall be elected for a three-year
\nterm. If the number of directors is changed, any increase or decrease shall be
\napportioned among the classes so as to maintain the number of directors in each
\nclass as nearly equal as possible, but in no case shall a decrease in the number
\nof directors shorten the term of any incumbent director. A director may be
\nremoved from office for cause only and, subject to such removal, death,
\nresignation,<\/p>\n
6
\n 10<\/p>\n
retirement or disqualification, shall hold office until the annual meeting for
\nthe year in which his term expires and until his successor shall be elected and
\nqualify. No alteration, amendment or repeal of these By-Laws shall be effective
\nto shorten the term of any director holding office at the time of such
\nalteration, amendment or repeal, to permit any such director to be removed
\nwithout cause, or to increase the number of directors in any class or in the
\naggregate from that existing at the time of such alteration, amendment or repeal
\nuntil the expiration of the terms of office of all directors then holding
\noffice, unless such alteration, amendment or repeal has been approved by either
\nthe holders of all shares of stock entitled to vote thereon or by a vote of a
\nmajority of the entire Board of Directors. The provisions of this Section 2
\nshall not apply to directors governed by Section 15 of this ARTICLE III.<\/p>\n
SECTION 3. ELECTION OF DIRECTORS. At each meeting of the stockholders for the
\nelection of directors, the directors to be elected at such meeting shall be
\nelected by a plurality of votes given at such election.<\/p>\n
SECTION 4. VACANCIES. Any vacancy occurring in the Board of Directors for any
\ncause other than by reason of an increase in the number of directors may be
\nfilled by a majority of the remaining members of the Board of Directors,
\nalthough such majority is less than a quorum, or by the stockholders. Any
\nvacancy occurring by reason of an increase in the number of directors may be
\nfilled by action of a majority of the entire Board of Directors or by the
\nstockholders. A director elected by the Board of Directors to fill a vacancy
\nshall be elected to hold office until the expiration of the term for which he
\nwas elected and until his successor shall have been elected and shall have
\nqualified. A director elected by the stockholders to fill a vacancy shall be
\nelected to hold office until the expiration of the term for which he was elected
\nand until his successor shall have been elected and shall have qualified. The
\nprovisions of this Section 4 shall not apply to directors governed by Section 15
\nof this ARTICLE III.<\/p>\n
SECTION 5. RESIGNATIONS. A director may resign at any time by giving written
\nnotice to the Board of Directors or to the Secretary. Such resignation shall
\ntake effect at the time specified therein and, unless otherwise specified
\ntherein, the acceptance of such resignation shall not be necessary to make it
\neffective.<\/p>\n
SECTION 6. ANNUAL MEETINGS. The Board of Directors, as constituted following the
\nvote of stockholders at any meeting of the stockholders for the election of
\ndirectors, may hold its first meeting for the purpose of organization and the
\ntransaction of business, if a quorum be present, immediately after such meeting
\nand at the same place, and notice of such meeting need not be given. Such first
\nmeeting may be held at any other time and place specified in a notice given as
\nhereinafter provided for special meetings of the Board of Directors or in a
\nconsent and waiver of notice thereof signed by all the directors.<\/p>\n
SECTION 7. REGULAR MEETINGS. Regular meetings of the Board of Directors may be
\nheld without notice at such places and times as may be fixed from time to time
\nby resolution of the Board.<\/p>\n
SECTION 8. SPECIAL MEETINGS; NOTICE. Special meetings of the Board of Directors
\nmay be called at any time by the Chairman of the Board or the President and
\nshall be called by the Secretary upon the written request of any three directors
\nand each special meeting shall be held at such place and time as shall be
\nspecified in the notice thereof. At least twenty-four (24) hours’ notice of each
\nsuch special meeting shall be given to each director personally or sent to him
\naddressed to his residence or usual place<\/p>\n
7
\n 11<\/p>\n
of business by telephone, telegram or facsimile transmission, or at least 120
\nhours’ notice of each such special meeting shall be given to each director by
\nletter sent to him addressed as aforesaid or on such shorter notice and by such
\nmeans as the person or persons calling such meeting may deem reasonably
\nnecessary or appropriate in light of the circumstances. Any notice by letter or
\ntelegram shall be deemed to be given when deposited in the United States mail so
\naddressed or when duly deposited at an appropriate office for transmission by
\ntelegram, as the case may be. Such notice need not state the business to be
\ntransacted at or the purpose or purposes of such special meeting. No notice of
\nany such special meeting of the Board of Directors need be given to any director
\nwho attends in person or who, in writing executed and filed with the records of
\nthe meeting, either before or after the holding thereof, waives such notice. No
\nnotice need be given of an adjourned meeting of the Board of Directors.<\/p>\n
SECTION 9. QUORUM AND MANNER OF ACTING. A majority of the total number of
\ndirectors, but in no event less than two directors, shall constitute a quorum
\nfor the transaction of business at any annual, regular or special meeting of the
\nBoard of Directors. Except as otherwise provided by law, by the Certificate of
\nIncorporation or by these By-Laws, the act of a majority of the directors
\npresent at any meeting, at which a quorum is present, shall be the act of the
\nBoard of Directors. In the absence of a quorum, a majority of the directors
\npresent may adjourn the meeting from time to time until a quorum be had.<\/p>\n
SECTION 10. CONSENT IN WRITING. Any action required or permitted to be taken at
\nany meeting of the Board of Directors or any committee thereof may be taken
\nwithout a meeting, if a written consent to such action is signed by all members
\nof the Board or of such committee, as the case may be, and such written consent
\nis filed with the minutes of proceedings of the Board or such committee.<\/p>\n
SECTION 11. COMMITTEES.<\/p>\n
(a) Executive Committee. The Board of Directors may, by resolution passed by a
\nmajority of a quorum of the Board, appoint an Executive Committee of not less
\nthan three members, each of whom shall be a director. The Executive Committee,
\nto the extent permitted by law, shall have and may exercise when the Board of
\nDirectors is not in session all powers of the Board in the management of the
\nbusiness and affairs of the Corporation, including, without limitation, the
\npower and authority to declare a dividend or to authorize the issuance of stock,
\nexcept such Committee shall not have the power or authority (i) to approve,
\nadopt, or recommend to stockholders any action or matter required by the
\nDelaware General Corporation Law to be submitted for stockholder approval; or
\n(ii) to adopt, amend, or repeal any By-Law of the Corporation.<\/p>\n
(b) Other Committees. The Board of Directors may, by resolution passed by a
\nmajority of a quorum of the Board, from time to time appoint such other
\ncommittees as may be permitted by law. Such other committees appointed by the
\nBoard of Directors shall have such powers and perform such duties as may be
\nprescribed by the resolution or resolutions creating such committee, but in no
\nevent shall any such committee have the powers denied to the Executive Committee
\nin these By-Laws.<\/p>\n
(c) Term. The members of all committees of the Board of Directors shall serve a
\nterm coexistent with that of the Board of Directors which shall have appointed
\nsuch committee. The Board, subject to the provisions of subsections (a) or (b)
\nof this Section 11, may at any time increase or decrease the number of members
\nof a committee or terminate the existence of a committee; provided, that no
\ncommittee shall consist of less than one member. The membership of a committee
\nmember shall terminate on the date of his death or voluntary resignation, but
\nthe Board may at any time for any reason remove any individual<\/p>\n
8
\n 12<\/p>\n
committee member and the Board may fill any committee vacancy created by death,
\nresignation, removal or increase in the number of members of the committee. The
\nBoard of Directors may designate one or more directors as alternate members of
\nany committee, who may replace any absent or disqualified member at any meeting
\nof the committee, and, in addition, in the absence or disqualification of any
\nmember of a committee, the member or members thereof present at any meeting and
\nnot disqualified from voting, whether or not he or they constitute a quorum, may
\nunanimously appoint another member of the Board of Directors to act at the
\nmeeting in the place of any such absent or disqualified member.<\/p>\n
(d) Meetings. Unless the Board of Directors shall otherwise provide, regular
\nmeetings of the Executive Committee or any other committee appointed pursuant to
\nthis Section 11 shall be held at such times and places as are determined by the
\nBoard of Directors, or by any such committee, and when notice thereof has been
\ngiven to each member of such committee, no further notice of such regular
\nmeetings need be given thereafter; special meetings of any such committee may be
\nheld at the principal office of the Corporation required to be maintained
\npursuant to Section 2 of ARTICLE I hereof; or at any place which has been
\ndesignated from time to time by resolution of such committee or by written
\nconsent of all members thereof, and may be called by any director who is a
\nmember of such committee, upon written notice to the members of such committee
\nof the time and place of such special meeting given in the manner provided for
\nthe giving of written notice to members of the Board of Directors of the time
\nand place of special meetings of the Board of Directors. Notice of any special
\nmeeting of any committee may be waived in writing at any time after the meeting
\nand will be waived by any director by attendance thereat. A majority of the
\nauthorized number of members of any such committee shall constitute a quorum for
\nthe transaction of business, and the act of a majority of those present at any
\nmeeting at which a quorum is present shall be the act of such committee.<\/p>\n
SECTION 12. TELEPHONE MEETINGS. The Board of Directors or any committee thereof
\nmay participate in a meeting by means of a conference telephone or similar
\ncommunications equipment if all members of the Board or of such committee, as
\nthe case may be, participating in the meeting can hear each other at the same
\ntime. Participation in a meeting by these means shall constitute presence in
\nperson at the meeting.<\/p>\n
SECTION 13. COMPENSATION. The directors may be paid their expenses, if any, of
\nattendance at each meeting of the Board of Directors and may be paid a fixed sum
\nfor attendance at each meeting of the Board of Directors and\/or a stated salary
\nas director. No such payment shall preclude any director from serving the
\nCorporation in any other capacity and receiving compensation therefor. Members
\nof special or standing committees may be allowed like compensation for attending
\ncommittee meetings.<\/p>\n
SECTION 14. INTERESTED DIRECTORS. No contract or transaction between the
\nCorporation and one or more of its directors or officers, or between the
\nCorporation and any other corporation, partnership, association, or other
\norganization in which one or more of its directors or officers are directors or
\nofficers, or have a financial interest, shall be void or voidable solely for
\nthis reason, or solely because the director or officer is present at or
\nparticipates in the meeting of the Board of Directors or committee thereof which
\nauthorizes the contract or transaction, or solely because his or their votes are
\ncounted for such purpose if (i) the material facts as to his or their
\nrelationship or interest and as to the contract or transaction are disclosed or
\nare known to the Board of Directors or committee, and the Board of Directors or
\ncommittee in good faith authorizes the contract or transaction by the
\naffirmative votes of a majority of the disinterested directors, even though the
\ndisinterested directors be less than a quorum; or (ii) the material facts as to
\nhis or their relationship or interest and as to the contract or transaction are
\ndisclosed or are known to the stockholders entitled to vote thereon, and the
\ncontract or transaction is specifically approved in good faith by vote of the
\nstockholders; or (iii) the contract or transaction is fair as to the Corporation
\nas of the time it is authorized, approved or ratified, by the Board of
\nDirectors, a committee thereof or the stockholders. Common or interested
\ndirectors may be counted in determining the presence of a quorum at a meeting of
\nthe Board of Directors or of a committee which authorizes the contract or
\ntransaction.<\/p>\n
9
\n 13<\/p>\n
SECTION 15. DIRECTORS ELECTED BY SPECIAL CLASS OR SERIES. To the extent that any
\nholders of any class or series of stock other than Common Stock issued by the
\nCorporation shall have the separate right, voting as a class or series, to elect
\ndirectors, the directors elected by such class or series shall be deemed to
\nconstitute an additional class of directors and shall have a term of office for
\none year or such other period as may be designated by the provisions of such
\nclass or series providing such separate voting right to the holders of such
\nclass or series of stock, and any such class of directors shall be in addition
\nto the classes referred to in Section 2 of this ARTICLE III. Any directors so
\nelected shall be subject to removal in such manner as may be provided by law or
\nby the Certificate of Incorporation of this Corporation. The provisions of
\nSections 2 and 4 of this ARTICLE III do not apply to directors governed by this
\nSection 15.<\/p>\n
ARTICLE IV<\/p>\n
OFFICERS<\/p>\n
SECTION 1. DESIGNATION OF OFFICERS. The officers of the Corporation, who shall
\nbe chosen by the Board of Directors at its first meeting after each annual
\nmeeting of stockholders, shall be a Chairman of the Board, a President, one or
\nmore Vice Presidents, a Treasurer, a Secretary and a Controller. The Board of
\nDirectors from time to time may choose such other officers as it shall deem
\nappropriate. Any one person may hold any number of offices of the Corporation at
\nany one time unless specifically prohibited therefrom by law. The Chairman of
\nthe Board and the President shall be chosen from among the directors; the other
\nofficers need not be directors.<\/p>\n
SECTION 2. TERM OF OFFICE; RESIGNATION; REMOVAL. The term of office of each
\nofficer shall be until the first meeting of the Board of Directors following the
\nnext annual meeting of stockholders and until his successor is elected and shall
\nhave qualified, or until his death, resignation or removal, whichever is sooner.
\nAny officer may resign at any time by giving written notice to the Board of
\nDirectors or to the Secretary. Such resignation shall take effect at the time
\nspecified therein and, unless otherwise specified therein, the acceptance of
\nsuch resignation shall not be necessary to make it effective. Any officer may be
\nremoved at any time either with or without cause by the Board of Directors.
\nNotwithstanding anything in these By-Laws to the contrary, for a period of one
\nyear following January 12, 1999, the requisite vote or approval of the Board of
\nDirectors necessary to terminate or replace, or fill a vacancy in respect of,
\nCharles W. McCall as Chairman of the Board or Mark A. Pulido as President and
\nChief Executive Officer shall be no less than seventy-five percent (75%) of the
\nmembers of the Board of Directors.<\/p>\n
SECTION 3. VACANCIES. A vacancy in any office because of death, resignation,
\nremoval, disqualification or any other cause, may be filled for the unexpired
\nportion of the term by the Board of Directors.<\/p>\n
10
\n 14<\/p>\n
SECTION 4. AUTHORITY OF OFFICERS. Subject to the power of the Board of Directors
\nin its discretion to change and redefine the duties of the officers of the
\nCorporation by resolution in such manner as it may from time to time determine,
\nthe duties of the officers of the Corporation shall be as follows:<\/p>\n
(a) Chairman of the Board. The Chairman of the Board shall preside at meetings
\nof the stockholders and the Board of Directors. Subject to the direction of the
\nBoard of Directors, he shall generally manage the affairs of the Board and
\nperform such other duties as are assigned by the Board.<\/p>\n
(b) President. The President shall be the Chief Executive Officer of the
\nCorporation, and shall execute all the powers and perform all the duties usual
\nto such office. Subject to the direction of the Board of Directors, he shall
\nhave the responsibility for the general management of the affairs of the
\nCorporation. The President shall perform such other duties as may be prescribed
\nor assigned to him from time to time by the Board of Directors.<\/p>\n
(c) Other Officers. The other officers of the Corporation shall have such powers
\nand shall perform such duties as generally pertain to their respective offices,
\nas well as such powers and duties as the Board of Directors, the Executive
\nCommittee or the Chief Executive Officer may prescribe.<\/p>\n
SECTION 5. DIVISIONAL TITLES. Any one of the Chief Executive Officer, President,
\nor Vice President Human Resources and Administration (each one an “Appointing
\nPerson”), may from time to time confer upon any employee of a division of the
\nCorporation the title of President, Vice President, Treasurer or Secretary of
\nsuch division or any other divisional title or titles deemed appropriate. Any
\nsuch titles so conferred may be discontinued and withdrawn at any time by any
\none Appointing Person. Any employee of a division designated by such a
\ndivisional title shall have the powers and duties with respect to such division
\nas shall be prescribed by the Appointing Person. The conferring, withdrawal or
\ndiscontinuance of divisional titles shall be in writing and shall be filed with
\nthe Secretary of the Corporation.<\/p>\n
SECTION 6. SALARIES. The salaries and other compensation of the principal
\nofficers of the Corporation shall be fixed from time to time by the Board of
\nDirectors.<\/p>\n
ARTICLE V<\/p>\n
EXECUTION OF CORPORATE INSTRUMENTS
\n AND VOTING OF SECURITIES OWNED BY THE CORPORATION<\/p>\n
SECTION 1. EXECUTION OF INSTRUMENTS. The Board of Directors may in its
\ndiscretion determine the method and designate the signatory officer or officers
\nor other person or persons, to execute any corporate instrument or document, or
\nto sign the corporate name without limitation, except where otherwise provided
\nby law, and such execution or signature shall be binding upon the Corporation.
\nAll checks and drafts drawn on banks or other depositories on funds to the
\ncredit of the Corporation or in special accounts of the Corporation, shall be
\nsigned by such person or persons as the Treasurer or such other person
\ndesignated by the Board of Directors for that purpose shall authorize so to do.<\/p>\n
SECTION 2. VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock and other
\nsecurities of other corporations and business entities owned or held by the
\nCorporation for itself, or for other parties in any capacity, shall be voted,
\nand all proxies with respect thereto shall be executed, by the person authorized
\nto do so by resolution of the Board of Directors.<\/p>\n
11
\n 15<\/p>\n
ARTICLE VI<\/p>\n
SHARES OF STOCK AND OTHER SECURITIES<\/p>\n
SECTION 1. FORM AND EXECUTION OF CERTIFICATES. Certificates for the shares of
\nstock of the Corporation shall be in such form as is consistent with the
\nCertificate of Incorporation and applicable law. Every holder of stock in the
\nCorporation shall be entitled to have a certificate signed by, or in the name of
\nthe Corporation by, the Chairman of the Board (if there be such an officer
\nappointed), or by the President or any Vice President and by the Treasurer or
\nAssistant Treasurer or the Secretary or Assistant Secretary, certifying the
\nnumber of shares owned by him in the Corporation. Any or all of the signatures
\non the certificate may be a facsimile. In case any officer, transfer agent, or
\nregistrar who has signed or whose facsimile signature has been placed upon a
\ncertificate shall have ceased to be such officer, transfer agent, or registrar
\nbefore such certificate is issued, it may be issued with the same effect as if
\nhe were such officer, transfer agent, or registrar at the date of issue. If the
\nCorporation shall be authorized to issue more than one class of stock or more
\nthan one series of any class, the powers, designations, preferences and
\nrelative, participating, optional or other special rights of each class of stock
\nor series thereof and the qualifications, limitations or restrictions of such
\npreferences and\/or rights shall be set forth in full or summarized on the face
\nor back of the certificate which the Corporation shall issue to represent such
\nclass or series of stock, provided that, except as otherwise provided in Section
\n202 of the General Corporation Law of Delaware, in lieu of the foregoing
\nrequirements, there may be set forth on the face or back of the certificate
\nwhich the Corporation shall issue to represent such class or series of stock, a
\nstatement that the Corporation will furnish without charge to each stockholder
\nwho so requests the powers, designations, preferences and relative,
\nparticipating, optional or other special rights of each class of stock or series
\nthereof and the qualifications, limitations or restrictions of such preferences
\nand\/or rights.<\/p>\n
SECTION 2. LOST CERTIFICATES. The Board of Directors may direct a new
\ncertificate or certificates to be issued in place of any certificate or
\ncertificates theretofore issued by the Corporation alleged to have been lost or
\ndestroyed, upon the making of an affidavit of that fact by the person claiming
\nthe certificate of stock to be lost or destroyed. When authorizing such issue of
\na new certificate or certificates, the Board of Directors may, in its discretion
\nand as a condition precedent to the issuance thereof, require the owner of such
\nlost or destroyed certificate or certificates, or his legal representative, to
\nindemnify the Corporation in such manner as it shall require and\/or to give the
\nCorporation a surety bond in such form and amount as it may direct as indemnity
\nagainst any claim that may be made against the Corporation with respect to the
\ncertificate alleged to have been lost or destroyed.<\/p>\n
SECTION 3. TRANSFERS. Transfers of record of shares of stock of the Corporation
\nshall be made only upon its books by the holders thereof, in person or by
\nattorney duly authorized, and upon the surrender of a certificate or
\ncertificates for a like number of shares, properly endorsed.<\/p>\n
SECTION 4. FIXING RECORD DATES. In order that the Corporation may determine the
\nstockholders entitled to notice of or to vote at any meeting of stockholders or
\nany adjournment thereof, or to express consent to corporate action in writing
\nwithout a meeting, or entitled to receive payment of any dividend or other
\ndistribution or allotment of any rights, or entitled to exercise any rights in
\nrespect of any change,<\/p>\n
12
\n 16<\/p>\n
conversion or exchange of stock or for the purpose of any other lawful action,
\nthe Board of Directors may fix, in advance, a record date, which shall not be
\nmore than 60 nor less than 10 days before the date of such meeting, nor more
\nthan 60 days prior to any other action. If no record date is fixed: (1) the
\nrecord date for determining stockholders entitled to notice of or to vote at a
\nmeeting of stockholders shall be at the close of business on the day next
\npreceding the day on which notice is given, or, if notice is waived, at the
\nclose of business on the day next preceding the day on which the meeting is
\nheld; (2) the record date for determining stockholders entitled to express
\nconsent to corporate action in writing without a meeting, when no prior action
\nby the Board of Directors is necessary, shall be the day on which the first
\nwritten consent is expressed; (3) the record date for determining stockholders
\nfor any other purpose shall be at the close of business on the day on which the
\nBoard of Directors adopts the resolution relating thereto. A determination of
\nstockholders of record entitled to notice of or to vote at a meeting of
\nstockholders shall apply to any adjournment of the meeting; provided, however,
\nthat the Board of Directors may fix a new record date for the adjourned meeting.<\/p>\n
SECTION 5. REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
\nrecognize the exclusive right of a person registered on its books as the owner
\nof shares to receive dividends, and to vote as such owner, and shall not be
\nbound to recognize any equitable or other claim to or interest in such share or
\nshares on the part of any other person, whether or not it shall have express or
\nother notice thereof, except as otherwise provided by the laws of Delaware.<\/p>\n
SECTION 6. REGULATIONS. The Board of Directors may make such rules and
\nregulations as it may deem expedient concerning the issue, transfer and
\nregistration of certificates for shares of the stock and other securities of the
\nCorporation, and may appoint transfer agents and registrars of any class of
\nstock or other securities of the Corporation.<\/p>\n
SECTION 7. OTHER SECURITIES OF THE CORPORATION. All bonds, debentures and other
\ncorporate securities of the Corporation, other than stock certificates, may be
\nsigned by the Chairman of the Board (if there be such an officer appointed), or
\nthe President or any Vice President or such other person as may be authorized by
\nthe Board of Directors and the corporate seal impressed thereon or a facsimile
\nof such seal imprinted thereon and attested by the signature of the Secretary or
\nan Assistant Secretary, or the Treasurer or an Assistant Treasurer; provided,
\nhowever, that where any such bond, debenture or other corporate security shall
\nbe authenticated by the manual signature of a trustee under an indenture
\npursuant to which such bond, debenture or other corporate security shall be
\nissued, the signature of the persons signing and attesting the corporate seal on
\nsuch bond, debenture or other corporate security may be the imprinted facsimile
\nof the signatures of such persons. Interest coupons appertaining to any such
\nbond, debenture or other corporate security, authenticated by a trustee as
\naforesaid, shall be signed by the Treasurer or an Assistant Treasurer of the
\nCorporation, or such other person as may be authorized by the Board of
\nDirectors, or bear imprinted thereon the facsimile signature of such person. In
\ncase any officer who shall have signed or attested any bond, debenture or other
\ncorporate security or whose facsimile signature shall appear thereon shall have
\nceased to be such officer before the bond, debenture or other corporate security
\nso signed or attested shall have been delivered, such bond, debenture or other
\ncorporate security nevertheless may be adopted by the Corporation and issued and
\ndelivered as though the person who signed the same or whose facsimile signature
\nshall have been used thereon had not ceased to be such officer of the
\nCorporation.<\/p>\n
13
\n 17<\/p>\n
ARTICLE VII<\/p>\n
CORPORATE SEAL<\/p>\n
The corporate seal shall consist of a die bearing the name of the
\nCorporation and the state and date of its incorporation. Said seal may be used
\nby causing it or a facsimile thereof to be impressed or affixed or reproduced or
\notherwise.<\/p>\n
ARTICLE VIII<\/p>\n
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS<\/p>\n
SECTION 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE
\nBY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this ARTICLE
\nVIII, the Corporation shall indemnify any person who was or is a party or is
\nthreatened to be made a party to any threatened, pending or completed action,
\nsuit or proceeding, whether civil, criminal, administrative or investigative
\n(other than an action by or in the right of the Corporation) by reason of the
\nfact that he is or was a director or officer of the Corporation, or is or was a
\ndirector or officer of the Corporation serving at the request of the Corporation
\nas a director or officer, employee or agent of another corporation, partnership,
\njoint venture, trust, employee benefit plan or other enterprise, against
\nexpenses (including attorneys’ fees), judgments, fines and amounts paid in
\nsettlement actually and reasonably incurred by him in connection with such
\naction, suit or proceeding if he acted in good faith and in a manner he
\nreasonably believed to be in or not opposed to the best interests of the
\nCorporation, and, with respect to any criminal action or proceeding, had no
\nreasonable cause to believe his conduct was unlawful. The termination of any
\naction, suit or proceeding by judgment, order, settlement, conviction, or upon a
\nplea of nolo contendere or its equivalent, shall not, of itself, create a
\npresumption that the person did not act in good faith and in a manner which he
\nreasonably believed to be in or not opposed to the best interests of the
\nCorporation, and, with respect to any criminal action or proceeding, had
\nreasonable cause to believe that his conduct was unlawful. The right to
\nindemnification conferred in this ARTICLE VIII shall be a contract right.<\/p>\n
SECTION 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE
\nRIGHT OF THE CORPORATION. Subject to Section 3 of this ARTICLE VIII, the
\nCorporation shall indemnify any person who was or is a party or is threatened to
\nbe made a party to any threatened, pending or completed action or suit by or in
\nthe right of the Corporation to procure a judgment in its favor by reason of the
\nfact that he is or was a director or officer of the Corporation, or is or was a
\ndirector or officer of the Corporation serving at the request of the Corporation
\nas a director, officer, employee or agent of another corporation, partnership,
\njoint venture, trust, employee benefit plan or other enterprise against expenses
\n(including attorneys’ fees) actually and reasonably incurred by him in
\nconnection with the defense or settlement of such action or suit if he acted in
\ngood faith and in a manner he reasonably believed to be in or not opposed to the
\nbest interests of the Corporation; except that no indemnification shall be made
\nin respect of any claim, issue or matter as to which such person shall have been
\nadjudged to be liable to the Corporation unless and only to the extent that the
\nCourt of Chancery or the court in which such action or suit was brought shall
\ndetermine upon application that, despite the adjudication of liability but in
\nview of all the circumstances of the case, such person is fairly and reasonably
\nentitled to indemnity for such expenses which the Court of Chancery or such
\nother court shall deem proper.<\/p>\n
14
\n 18<\/p>\n
SECTION 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under this
\nARTICLE VIII (unless ordered by a court) shall be made by the Corporation only
\nas authorized in the specific case upon a determination that indemnification of
\nthe director or officer is proper in the circumstances because he has met the
\napplicable standard of conduct set forth in Section 1 or Section 2 of this
\nARTICLE VIII, as the case may be. Such determination shall be made (i) by the
\nBoard of Directors by a majority vote of a quorum consisting of directors who
\nwere not parties to such action, suit or proceeding, or (ii) if such a quorum is
\nnot obtainable, or, even if obtainable a quorum of disinterested directors so
\ndirects, by independent legal counsel in a written opinion, or (iii) by the
\nstockholders. To the extent, however, that a director or officer of the
\nCorporation has been successful on the merits or otherwise in defense of any
\naction, suit or proceeding described above, or in defense of any claim, issue or
\nmatter therein, he shall be indemnified against expenses (including attorneys’
\nfees) actually and reasonably incurred by him in connection therewith, without
\nthe necessity of authorization in the specific case.<\/p>\n
SECTION 4. GOOD FAITH DEFINED. For purposes of any determination under Section 3
\nof this ARTICLE VIII, a person shall be deemed to have acted in good faith and
\nin a manner he reasonably believed to be in or not opposed to the best interests
\nof the Corporation, or, with respect to any criminal action or proceeding, to
\nhave had no reasonable cause to believe his conduct was unlawful, if his action
\nis based on the records or books of account of the Corporation or another
\nenterprise, or on information supplied to him by the officers of the Corporation
\nor another enterprise in the course of their duties, or on the advice of legal
\ncounsel for the Corporation or another enterprise or on information or records
\ngiven or reports made to the Corporation or another enterprise by an independent
\ncertified public accountant or by an appraiser or other expert selected with
\nreasonable care by the Corporation or another enterprise. The term “another
\nenterprise” as used in this Section 4 shall mean any other corporation or any
\npartnership, joint venture, trust, employee benefit plan or other enterprise of
\nwhich such person is or was serving at the request of the Corporation as a
\ndirector, officer, employee or agent. The provisions of this Section 4 shall not
\nbe deemed to be exclusive or to limit in any way the circumstances in which a
\nperson may be deemed to have met the applicable standard of conduct set forth in
\nSections 1 or 2 of this ARTICLE VIII, as the case may be.<\/p>\n
SECTION 5. INDEMNIFICATION BY A COURT. Notwithstanding any contrary
\ndetermination in the specific case under Section 3 of this ARTICLE VIII, and
\nnotwithstanding the absence of any determination thereunder, any director or
\nofficer may apply to any court of competent jurisdiction in the State of
\nDelaware for indemnification to the extent otherwise permissible under Sections
\n1 and 2 of this ARTICLE VIII. The basis of such indemnification by a court shall
\nbe a determination by such court that indemnification of the director or officer
\nis proper in the circumstances because he has met the applicable standards of
\nconduct set forth in Sections 1 or 2 of this ARTICLE VIII, as the case may be.
\nNeither a contrary determination in the specific case under Section 3 of this
\nARTICLE VIII nor the absence of any determination thereunder shall be a defense
\nto such application or create a presumption that the director or officer seeking
\nindemnification has not met any applicable standard of conduct. Notice of any
\napplication for indemnification pursuant to this Section 5 shall be given to the
\nCorporation promptly upon the filing of such application. If successful, in
\nwhole or in part, the director or officer seeking indemnification shall also be
\nentitled to be paid the expense of prosecuting such application.<\/p>\n
SECTION 6. EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a director or
\nofficer in defending or investigating a threatened or pending action, suit or
\nproceeding shall be paid by the Corporation in advance of the final disposition
\nof such action, suit or proceeding upon receipt of an undertaking by or on
\nbehalf of such director or officer to repay such amount if it shall ultimately
\nbe determined that he is not entitled to be indemnified by the Corporation as
\nauthorized in this ARTICLE VIII.<\/p>\n
15
\n 19<\/p>\n
SECTION 7. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
\nindemnification and advancement of expenses provided by or granted pursuant to
\nthis ARTICLE VIII shall not be deemed exclusive of any other rights to which
\nthose seeking indemnification or advancement of expenses may be entitled under
\nany By-Law, agreement, contract, vote of stockholders or disinterested directors
\nor pursuant to the direction (howsoever embodied) of any court of competent
\njurisdiction or otherwise, both as to action in his official capacity and as to
\naction in another capacity while holding such office, it being the policy of the
\nCorporation that indemnification of the persons specified in Sections 1 and 2 of
\nthis ARTICLE VIII shall be made to the fullest extent permitted by law. The
\nprovisions of this ARTICLE VIII shall not be deemed to preclude the
\nindemnification of any person who is not specified in Sections 1 or 2 of this
\nARTICLE VIII but whom the Corporation has the power or obligation to indemnify
\nunder the provisions of the General Corporation Law of the State of Delaware, or
\notherwise.<\/p>\n
SECTION 8. INSURANCE. The Corporation may purchase and maintain insurance on
\nbehalf of any person who is or was a director or officer of the Corporation, or
\nis or was a director or officer of the Corporation serving at the request of the
\nCorporation as a director, officer, employee or agent of another corporation,
\npartnership, joint venture, trust, employee benefit plan or other enterprise
\nagainst any liability asserted against him and incurred by him in any such
\ncapacity, or arising out of his status as such, whether or not the Corporation
\nwould have the power or the obligation to indemnify him against such liability
\nunder the provisions of this ARTICLE VIII.<\/p>\n
SECTION 9. CERTAIN DEFINITIONS. For purposes of this ARTICLE VIII, references to
\n“the Corporation” shall include, in addition to the resulting corporation, any
\nconstituent corporation (including any constituent of a constituent) absorbed in
\na consolidation or merger which, if its separate existence had continued, would
\nhave had power and authority to indemnify its directors or officers, so that any
\nperson who is or was a director or officer of such constituent corporation, or
\nis or was a director or officer of such constituent corporation serving at the
\nrequest of such constituent corporation as a director, officer, employee or
\nagent of another corporation, partnership, joint venture, trust, employee
\nbenefit plan or other enterprise, shall stand in the same position under the
\nprovisions of this ARTICLE VIII with respect to the resulting or surviving
\ncorporation as he would have with respect to such constituent corporation if its
\nseparate existence had continued. For purposes of this ARTICLE VIII, references
\nto “fines” shall include any excise taxes assessed on a person with respect to
\nan employee benefit plan; and references to “serving at the request of the
\nCorporation” shall include any service as a director, officer, employee or agent
\nof the Corporation which imposes duties on, or involves services by, such
\ndirector or officer with respect to an employee benefit plan, its participants
\nor beneficiaries; and a person who acted in good faith and in a manner he
\nreasonably believed to be in the interest of the participants and beneficiaries
\nof an employee benefit plan shall be deemed to have acted in a manner “not
\nopposed to the best interests of the Corporation” as referred to in this ARTICLE
\nVIII.<\/p>\n
SECTION 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
\nindemnification and advancement of expenses provided by, or granted pursuant to,
\nthis ARTICLE VIII shall, unless otherwise provided when authorized or ratified,
\ncontinue as to a person who has ceased to be a director or officer and shall
\ninure to the benefit of the heirs, executors and administrators of such a
\nperson.<\/p>\n
16
\n 20<\/p>\n
SECTION 11. LIMITATION ON INDEMNIFICATION. Notwithstanding anything contained in
\nthis ARTICLE VIII to the contrary, except for proceedings to enforce rights to
\nindemnification (which shall be governed by Section 5 hereof), the Corporation
\nshall not be obligated to indemnify any director or officer in connection with a
\nproceeding (or part thereof) initiated by such person unless such proceeding (or
\npart thereof) was authorized or consented to by the Board of Directors of the
\nCorporation.<\/p>\n
SECTION 12. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may, to the
\nextent authorized from time to time by the Board of Directors, provide rights to
\nindemnification and to the advancement of expenses to employees and agents of
\nthe Corporation similar to those conferred in this ARTICLE VIII to directors and
\nofficers of the Corporation.<\/p>\n
SECTION 13. EFFECT OF AMENDMENT. Any amendment, repeal or modification of this
\nARTICLE VIII shall not (a) adversely affect any right or protection of any
\ndirector or officer existing at the time of such amendment, repeal or
\nmodification, or (b) apply to the indemnification of any such person for
\nliability, expense, or loss stemming from actions or omissions occurring prior
\nto such amendment, repeal, or modification.<\/p>\n
SECTION 14. AUTHORITY TO ENTER INTO INDEMNIFICATION AGREEMENTS. The Corporation
\nmay enter into indemnification agreements with the directors and officers of the
\nCorporation, including, without limitation, any indemnification agreement in
\nsubstantially the form set forth in Exhibit 1 attached to these By-Laws.<\/p>\n
ARTICLE IX<\/p>\n
NOTICES<\/p>\n
Whenever, under any provisions of these By-Laws, notice is required to be given
\nto any stockholder, the same shall be given in writing, timely and duly
\ndeposited in the United States Mail, postage prepaid, and addressed to his last
\nknown post office address as shown by the stock record of the Corporation or its
\ntransfer agent. Any notice required to be given to any director may be given by
\nany of the methods stated in Section 8 of ARTICLE III hereof, except that such
\nnotice other than one which is delivered personally, shall be sent to such
\naddress or (in the case of facsimile telecommunication) facsimile telephone
\nnumber as such director shall have disclosed in writing to the Secretary of the
\nCorporation, or, in the absence of such filing, to the last known post office
\naddress of such director. If no address of a stockholder or director be known,
\nsuch notice may be sent to the office of the Corporation required to be
\nmaintained pursuant to Section 2 of ARTICLE I hereof. An affidavit of mailing,
\nexecuted by a duly authorized and competent employee of the Corporation or its
\ntransfer agent appointed with respect to the class of stock affected, specifying
\nthe name and address or the names and addresses of the stockholder or
\nstockholders, director or directors, to whom any such notice or notices was or
\nwere given, and the time and method of giving the same, shall be conclusive
\nevidence of the statements therein contained. All notices given by mail, as
\nabove provided, shall be deemed to have been given as at the time of mailing and
\nall notices given by telegram or other means of electronic transmission shall be
\ndeemed to have been given as at the sending time recorded by the telegraph
\ncompany or other electronic transmission equipment operator transmitting the
\nsame. It shall not be necessary that the same method of giving be employed in
\nrespect of all directors, but one permissible method may be employed in respect
\nof any one or more, and any other permissible method or methods may be employed
\nin respect of any other or others. The period or limitation of time within which
\nany stockholder may exercise any option or right, or enjoy any privilege or
\nbenefit, or be required to act, or within which any director may exercise any
\npower or right, or enjoy any privilege, pursuant to any notice sent him in the
\nmanner above provided, shall not be<\/p>\n
17
\n 21<\/p>\n
affected or extended in any manner by the failure of such a stockholder or such
\ndirector to receive such notice. Whenever any notice is required to be given
\nunder the provisions of this statutes or of the Certificate of Incorporation, or
\nof these By-Laws, a waiver thereof in writing signed by the person or persons
\nentitled to said notice, whether before or after the time stated therein, shall
\nbe deemed equivalent thereto. Whenever notice is required to be given, under any
\nprovision of law or of the Certificate of Incorporation or By-Laws of the
\nCorporation, to any person with whom communication is unlawful, the giving of
\nsuch notice to such person shall not be required and there shall be no duty to
\napply to any governmental authority or agency for a license or permit to give
\nsuch notice to such person. Any action or meeting which shall be taken or held
\nwithout notice to any such person with whom communication is unlawful shall have
\nthe same force and effect as if such notice had been duly given. In the event
\nthat the action taken by the Corporation is such as to require the filing of a
\ncertificate under any provision of the Delaware General Corporation Law, the
\ncertificate shall state, if such is the fact and if notice is required, that
\nnotice was given to all persons entitled to receive notice except such persons
\nwith whom communication is unlawful.<\/p>\n
ARTICLE X<\/p>\n
AMENDMENTS<\/p>\n
The Board of Directors is expressly authorized to adopt, alter and repeal the
\nBy-Laws of the Corporation in whole or in part at any regular or special meeting
\nof the Board of Directors, by vote of a majority of the entire Board of
\nDirectors. Except where ARTICLE V of the Certificate of Incorporation of the
\nCorporation requires a higher vote, the By-Laws may also be adopted, altered or
\nrepealed in whole or in part at any annual or special meeting of the
\nstockholders by the affirmative vote of three fourths of the shares of the
\nCorporation outstanding and entitled to vote thereon.<\/p>\n
CERTIFICATE OF SECRETARY<\/p>\n
The undersigned, Senior Vice President, General Counsel and Secretary of
\nMcKesson HBOC, Inc., a Delaware corporation, hereby certifies that the foregoing
\nis a full, true and correct copy of the By-Laws of said Corporation, with all
\namendments to date of this Certificate.<\/p>\n
WITNESS the signature of the undersigned and the seal of the Corporation this
\n31st day of March, 2001.<\/p>\n
\/s\/ Ivan D. Meyerson
\n ——————————————
\n Ivan D. Meyerson
\n Senior Vice President, General Counsel and
\n Secretary<\/p>\n
18
\n 22<\/p>\n
EXHIBIT 1<\/p>\n
INDEMNIFICATION AGREEMENT<\/p>\n
AGREEMENT, effective as of ______, 19__, between McKesson HBOC, Inc., a Delaware
\ncorporation (the “Company”), and ______________ (the “Indemnitee”).<\/p>\n
WHEREAS, it is essential to the Company to retain and attract as directors and
\nofficers the most capable persons available.<\/p>\n
WHEREAS, Indemnitee is a director\/officer of the Company;<\/p>\n
WHEREAS, both the Company and Indemnitee recognize the increased risk of
\nlitigation and other claims being asserted against directors of public companies
\nin today’s environment;<\/p>\n
WHEREAS, the Certificate of Incorporation and the By-laws of the Company require
\nthe Company to indemnify and advance expenses to its directors to the fullest
\nextent permitted by law and the Indemnitee has been serving and continues to
\nserve as a director or officer of the Company in part in reliance on such
\nCertificate of Incorporation and By-laws;<\/p>\n
WHEREAS, in recognition of Indemnitee’s need for substantial protection against
\npersonal liability in order to enhance Indemnitee’s continued service to the
\nCompany in an effective manner and Indemnitee’s reliance on the aforesaid
\nCertificate of Incorporation and By-laws, and in part to provide Indemnitee with
\nspecific contractual assurance that the protection promised by such Certificate
\nof Incorporation and By-laws will be available to Indemnitee (regardless of,
\namong other things, any amendment to or revocation of such Certificate of
\nIncorporation and By-laws or any change in the composition of the Company’s
\nBoard of Directors or acquisition transaction relating to the Company), and in
\norder to induce Indemnitee to continue to provide services to the Company as a
\ndirector or officer thereof, the Company wishes to provide in this Agreement for
\nthe indemnification of and the advancing of expenses to Indemnitee to the
\nfullest extent (whether partial or complete) permitted by law and as set forth
\nin this Agreement, and, to the extent insurance is maintained, for the continued
\ncoverage of Indemnitee under the Company’s directors’ and officers’ liability
\ninsurance policies.<\/p>\n
NOW, THEREFORE, in consideration of the premises and of Indemnitee continuing to
\nserve the Company directly or, at its request, with another enterprise, and
\nintending to be legally bound hereby, the parties hereto agree as follows:<\/p>\n
1. CERTAIN DEFINITIONS.<\/p>\n
(a) Change in Control: shall be deemed to have occurred if (i) any
\n“person” (as such term is used in Sections 13(d) and 14(d) of the Securities
\nExchange Act of 1934, as amended), other than a trustee or other fiduciary
\nholding securities under an employee benefit plan of the Company or a
\ncorporation owned directly or indirectly by the stockholders of the Company in
\nsubstantially the same proportions as their ownership of stock of the Company,
\nis or becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act),
\ndirectly or indirectly, of securities of the Company representing 20% or more of
\nthe total voting power represented by the Company’s then outstanding Voting
\nSecurities, or (ii) during any period of two consecutive years, individuals who
\nat the beginning of such period constitute the Board of Directors of the Company
\nand any new director whose election by the Board of Directors or nomination for
\nelection by the Company’s stockholders was approved by a vote of at least
\ntwo-thirds (2\/3) of the directors then still in office who either were directors
\nat the beginning of the period or whose election or nomination for election<\/p>\n
1
\n 23<\/p>\n
was previously so approved, cease for any reason to constitute a majority
\nthereof, or (iii) the stockholders of the Company approve a merger or
\nconsolidation of the Company with any other corporation, other than a merger or
\nconsolidation which would result in the Voting Securities of the Company
\noutstanding immediately prior thereto continuing to represent (either by
\nremaining outstanding or by being converted into Voting Securities of the
\nsurviving entity) at least 80% of the total voting power represented by the
\nVoting Securities of the Company or such surviving entity outstanding
\nimmediately after such merger or consolidation, or the stockholders of the
\nCompany approve a plan of complete liquidation of the Company or an agreement
\nfor the sale or disposition by the Company (in one transaction or a series of
\ntransactions) of all or substantially all of the Company’s assets.<\/p>\n
(b) Expense: include attorneys’ fees and all other costs, expenses and
\nobligations paid or incurred in connection with investigating, defending, being
\na witness in or participating in (including on appeal), or preparing to defend,
\nbe a witness in or participate in any Proceeding relating to any Indemnifiable
\nEvent.<\/p>\n
(c) Indemnifiable Event: any event or occurrence that takes place either
\nprior to or after the execution of this Agreement, related to the fact that
\nIndemnitee is or was a director or an officer of the Company, or while a
\ndirector or officer is or was serving at the request of the Company as a
\ndirector, officer, employee, trustee, agent or fiduciary of another corporation,
\npartnership, joint venture, employee benefit plan, trust or other enterprise, or
\nby reason of anything done or not done by Indemnitee in any such capacity.<\/p>\n
(d) Potential Change in Control: shall be deemed to have occurred if (i)
\nthe Company enters into an agreement or arrangement, the consummation of which
\nwould result in the occurrence of Change in Control; (ii) any person (including
\nthe Company) publicly announces an intention to take or to consider taking
\nactions which if consummated would constitute Change in Control; (iii) any
\nperson, other than a trustee or other fiduciary holding securities under an
\nemployee benefit plan of the Company acting in such capacity or a corporation
\nowned, directly or indirectly, by the stockholders of the Company in
\nsubstantially the same proportions as their ownership of stock of the Company,
\nwho is or becomes the beneficial owner, directly or indirectly, of securities of
\nthe Company representing 10% or more of the combined voting power of the
\nCompany’s then outstanding Voting Securities, increases his beneficial ownership
\nof such securities by 5% or more over the percentage so owned by such person on
\nthe date hereof; or (iv) the Board adopts a resolution to the effect that, for
\npurposes of this Agreement, a Potential Change in Control has occurred.<\/p>\n
(e) Proceeding: any threatened, pending or completed action, suit or
\nproceeding, or any inquiry, hearing or investigation, whether conducted by the
\nCompany or any other party, that Indemnitee in good faith believes might lead to
\nthe institution of any such action, suit or proceeding, whether civil, criminal,
\nadministrative, investigative or other.<\/p>\n
(f) Reviewing Party: any appropriate person or body consisting of a
\nmember or members of the Company’s Board of Directors or any other person or
\nbody appointed by the Board (including the special, independent counsel referred
\nto in Section 3) who is not a party to the particular Proceeding with respect to
\nwhich Indemnitee is seeking indemnification.<\/p>\n
(g) Voting Securities: any securities of the Company which vote
\ngenerally in the election of directors.<\/p>\n
2
\n 24<\/p>\n
2. AGREEMENT TO INDEMNIFY.<\/p>\n
(a) In the event Indemnitee was, is or becomes a party to or witness or
\nother participant in, or is threatened to be made a party to or witness or other
\nparticipant in, a Proceeding by reason of (or arising in part out of) an
\nIndemnifiable Event, the Company shall indemnify Indemnitee to the fullest
\nextent permitted by law, as soon as practicable but in any event no later than
\nthirty days after written demand is presented to the Company, against any and
\nall Expenses, judgments, fines, penalties and amounts paid in settlement
\n(including all interest, assessments and other charges paid or payable in
\nconnection with or in respect of such Expenses, judgments, fines, penalties or
\namounts paid in settlement) of such Proceeding and any federal, state, local or
\nforeign taxes imposed on the Indemnitee as a result of the actual or deemed
\nreceipt of any payments under this Agreement (including the creation of the
\nTrust). Notwithstanding anything in this Agreement to the contrary and except as
\nprovided in Section 5, prior to a Change in Control Indemnitee shall not be
\nentitled to indemnification pursuant to this Agreement in connection with any
\nProceeding initiated by Indemnitee against the Company or any director or
\nofficer of the Company unless the Company has joined in or consented to the
\ninitiation of such Proceeding. If so requested by Indemnitee, the Company shall
\nadvance (within ten business days of such request) any and all Expenses to
\nIndemnitee (an “Expense Advance”).<\/p>\n
(b) Notwithstanding the foregoing, (i) the obligations of the Company
\nunder Section 2(a) shall be subject to the condition that the Reviewing Party
\nshall not have determined (in a written opinion, in any case in which the
\nspecial, independent counsel referred to in Section 3 hereof is involved) that
\nIndemnitee would not be permitted to be indemnified under applicable law, and
\n(ii) the obligation of the Company to make an Expense Advance pursuant to
\nSection 2(a) shall be subject to the condition that, if, when and to the extent
\nthat the Reviewing Party determines that Indemnitee would not be permitted to be
\nso indemnified under applicable law, the Company shall be entitled to be
\nreimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all
\nsuch amounts theretofore paid; provided, however, that if Indemnitee has
\ncommenced legal proceedings in a court of competent jurisdiction to secure a
\ndetermination that Indemnitee should be indemnified under applicable law, any
\ndetermination made by the Reviewing Party that Indemnitee would not be permitted
\nto be indemnified under applicable law shall not be binding and Indemnitee shall
\nnot be required to reimburse the Company for any Expense Advance until a final
\njudicial determination is made with respect thereto (as to which all rights of
\nappeal therefrom have been exhausted or lapsed). Indemnitee’s obligation to
\nreimburse the Company for Expense Advances shall be unsecured and no interest
\nshall be charged thereon. If there has not been a Change in Control the
\nReviewing Party shall be selected by the Board of Directors, and if there has
\nbeen such a Change in Control (other than a Change in Control which has been
\napproved by a majority of the Company’s Board of Directors who were directors
\nimmediately prior to such Change in Control), the Reviewing Party shall be the
\nspecial, independent counsel referred to in Section 3 hereof. If there has been
\nno determination by the Reviewing Party or if the Reviewing Party determines
\nthat Indemnitee substantively would not be permitted to be indemnified in whole
\nor in part under applicable law, Indemnitee shall have the right to commence
\nlitigation in any court in the States of California or Delaware having subject
\nmatter jurisdiction thereof and in which venue is proper seeking an initial
\ndetermination by the court or challenging any such determination by the
\nReviewing Party or any aspect thereof, and the Company hereby consents to
\nservice of process and to appear in any such proceeding. Any determination by
\nthe Reviewing Party otherwise shall be conclusive and binding on the Company and
\nIndemnitee.<\/p>\n
3. CHANGE IN CONTROL. The Company agrees that if there is a Change in
\nControl of the Company (other than a Change in Control which has been approved
\nby a majority of the Company’s Board of Directors who were directors immediately
\nprior to such Change in Control) then with respect to all matters thereafter
\narising concerning the rights of Indemnitee to indemnity payments and Expense
\nAdvances under this Agreement or any other agreement or under applicable law or
\nthe Company’s Certificate of Incorporation<\/p>\n
3
\n 25<\/p>\n
or By-Laws now or hereafter in effect relating to indemnification for
\nIndemnifiable Events, the Company shall seek legal advice only from special,
\nindependent counsel selected by Indemnitee and approved by the Company (which
\napproval shall not be unreasonably withheld), and who has not otherwise
\nperformed services for the Company or the Indemnitee (other than in connection
\nwith such matters) within the last five years. Such independent counsel shall
\nnot include any person who, under the applicable standards of professional
\nconduct then prevailing, would have a conflict of interest in representing
\neither the Company or Indemnitee in an action to determine Indemnitee’s rights
\nunder this Agreement. Such counsel, among other things, shall render its written
\nopinion to the Company and Indemnitee as to whether and to what extent the
\nIndemnitee would be permitted to be indemnified under applicable law. The
\nCompany agrees to pay the reasonable fees of the special, independent counsel
\nreferred to above and to indemnify fully such counsel against any and all
\nexpenses (including attorneys’ fees), claims, liabilities and damages arising
\nout of or relating to this Agreement or the engagement of special, independent
\ncounsel pursuant hereto.<\/p>\n
4. ESTABLISHMENT OF TRUST. In the event of a Potential Change in Control,
\nthe Company shall, upon written request by Indemnitee, create a Trust for the
\nbenefit of the Indemnitee and from time to time upon written request of
\nIndemnitee shall fund such Trust in an amount sufficient to satisfy any and all
\nExpenses reasonably anticipated at the time of each such request to be incurred
\nin connection with investigating, preparing for and defending any Proceeding
\nrelating to an Indemnifiable event, and any and all judgments, fines, penalties
\nand settlement amounts of any and all Proceedings relating to an Indemnifiable
\nEvent from time to time actually paid or claimed, reasonably anticipated or
\nproposed to be paid. The amount or amounts to be deposited in the Trust pursuant
\nto the foregoing funding obligation shall be determined by the Reviewing Party,
\nin any case in which the special, independent counsel referred to above is
\ninvolved. The terms of the Trust shall provide that upon a Change in Control (i)
\nthe Trust shall not be revoked or the principal thereof invaded, without the
\nwritten consent of the Indemnitee, (ii) the Trustee shall advance, within ten
\nbusiness days of a request by the Indemnitee, any and all Expenses to the
\nIndemnitee (and the Indemnitee hereby agrees to reimburse the Trust under the
\ncircumstances under which the Indemnitee would be required to reimburse the
\nCompany under Section 2(b) of this Agreement), (iii) the Trust shall continue to
\nbe funded by the Company in accordance with the funding obligation set forth
\nabove, (iv) the Trustee shall promptly pay to the Indemnitee all amounts for
\nwhich the Indemnitee shall be entitled to indemnification pursuant to this
\nAgreement or otherwise, and (v) all unexpended funds in such Trust shall revert
\nto the Company upon a final determination by the Reviewing Party or a court of
\ncompetent jurisdiction, as the case may be, that the Indemnitee has been fully
\nindemnified under the terms of this Agreement. The Trustee shall be chosen by
\nthe Indemnitee. Nothing in this Section 4 shall relieve the Company of any of
\nits obligations under this Agreement. All income earned on the assets held in
\nthe Trust shall be reported as income by the Company for federal, state, local
\nand foreign tax purposes.<\/p>\n
5. INDEMNIFICATION FOR EXPENSES INCURRED IN ENFORCING THIS AGREEMENT. The
\nCompany shall indemnify Indemnitee against any and all expenses (including
\nattorneys’ fees), and, if requested by Indemnitee, shall (within ten business
\ndays of such request) advance such expenses to Indemnitee, which are incurred by
\nIndemnitee in connection with any claim asserted against or action brought by
\nIndemnitee for (i) indemnification or advance payment of Expenses by the Company
\nunder this Agreement or any other agreement or under applicable law or the
\nCompany’s Certificate of Incorporation or By-laws now or hereafter in effect
\nrelating to indemnification for Indemnifiable Events and\/or (ii) recovery under
\nany directors’ and officers’ liability insurance policies maintained by the
\nCompany, regardless of whether Indemnitee ultimately is determined to be
\nentitled to such indemnification, advance expense payment or insurance recovery,
\nas the case may be.<\/p>\n
4
\n 26<\/p>\n
6. PARTIAL INDEMNITY. If Indemnitee is entitled under any provision of this
\nAgreement to indemnification by the Company for some or a portion of the
\nExpenses, judgments, fines, penalties and amounts paid in settlement of a
\nProceeding but not, however, for all of the total amount thereof, the Company
\nshall nevertheless indemnify Indemnitee for the portion thereof to which
\nIndemnitee is entitled. Moreover, notwithstanding any other provision of this
\nAgreement, to the extent that Indemnitee has been successful on the merits or
\notherwise in defense of any or all Proceedings relating in whole or in part to
\nan Indemnifiable Event or in defense of any issue or matter therein, including
\ndismissal without prejudice, Indemnitee shall be indemnified against all
\nExpenses incurred in connection therewith.<\/p>\n
7. DEFENSE TO INDEMNIFICATION, BURDEN OF PROOF AND PRESUMPTIONS. It shall be
\na defense to any action brought by the Indemnitee against the Company to enforce
\nthis Agreement (other than an action brought to enforce a claim for expenses
\nincurred in defending a Proceeding in advance of its final disposition where the
\nrequired undertaking has been tendered to the Company) that the Indemnitee has
\nnot met the standards of conduct that make it permissible under the Delaware
\nGeneral Corporation Law for the Company to indemnify the Indemnitee for the
\namount claimed. In connection with any determination by the Reviewing Party or
\notherwise as to whether the Indemnitee is entitled to be indemnified hereunder,
\nthe burden of proving such a defense shall be on the Company. Neither the
\nfailure of the Company (including its Board of Directors, independent legal
\ncounsel, or its stockholders) to have made a determination prior to the
\ncommencement of such action by the Indemnitee that indemnification of the
\nclaimant is proper under the circumstances because he or she has met the
\napplicable standard of conduct set forth in the Delaware General Corporation
\nLaw, nor an actual determination by the Company (including its Board of
\nDirectors, independent legal counsel, or its stockholders) that the Indemnitee
\nhad not met such applicable standard of conduct, shall be a defense to the
\naction or create a presumption that the Indemnitee has not met the applicable
\nstandard of conduct. For purposes of this Agreement, the termination of any
\nclaim, action, suit or proceeding, by judgment, order, settlement (whether with
\nor without court approval) or conviction, or upon a plea of nolo contendere, or
\nits equivalent, shall not create a presumption that Indemnitee did not meet any
\nparticular standard of conduct or have any particular belief or that a court has
\ndetermined that indemnification is not permitted by applicable law.<\/p>\n
8. NON-EXCLUSIVITY. The rights of the Indemnitee hereunder shall be in
\naddition to any other rights Indemnitee may have under the Company’s Certificate
\nof Incorporation or By-laws or the Delaware General Corporation Law or
\notherwise. To the extent that a change in the Delaware General Corporation Law
\n(whether by statute or judicial decision) permits greater indemnification by
\nagreement than would be afforded currently under the Company’s Certificate of
\nIncorporation and By-laws and this Agreement, it is the intent of the parties
\nhereto that Indemnitee shall enjoy by this Agreement the greater benefits so
\nafforded by such change.<\/p>\n
9. LIABILITY INSURANCE. To the extent the Company maintains an insurance
\npolicy or policies providing directors’ and officers’ liability insurance,
\nIndemnitee shall be covered by such policy or policies, in accordance with its
\nor their terms, to the maximum extent of the coverage available for any Company
\ndirector or officer.<\/p>\n
10. PERIOD OF LIMITATIONS. No legal action shall be brought and no cause of
\naction shall be asserted by or on behalf of the Company or any affiliate of the
\nCompany against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or
\nlegal representatives after the expiration of two years from the date of accrual
\nof such cause of action, or such longer period as may be required by state law
\nunder the circumstances, and any claim or cause of action of the Company or its
\naffiliate shall be extinguished and deemed released unless asserted by the
\ntimely filing of a legal action within such period; provided,<\/p>\n
5
\n 27<\/p>\n
however, that if any shorter period of limitations is otherwise applicable to
\nany such cause of action such shorter period shall govern.<\/p>\n
11. AMENDMENT OF THIS AGREEMENT. No supplement, modification or amendment of
\nthis Agreement shall be binding unless executed in writing by both of the
\nparties hereto. No waiver of any of the provisions of this Agreement shall be
\ndeemed or shall constitute a waiver of any other provisions hereof (whether or
\nnot similar) nor shall such waiver constitute a continuing waiver.<\/p>\n
12. SUBROGATION. In the event of payment under this Agreement, the Company
\nshall be subrogated to the extent of such payment to all of the rights of
\nrecovery of Indemnitee, who shall execute all papers required and shall do
\neverything that may be necessary to secure such rights, including the execution
\nof such documents necessary to enable the Company effectively to bring suit to
\nenforce such rights.<\/p>\n
13. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under this
\nAgreement to make any payment in connection with any claim made against
\nIndemnitee to the extent Indemnitee has otherwise actually received payment
\n(under any insurance policy, By-law or otherwise) of the amounts otherwise
\nindemnifiable hereunder.<\/p>\n
14. SETTLEMENT OF CLAIMS. The Company shall not be liable to indemnify
\nIndemnitee under this Agreement for any amounts paid in settlement of any action
\nor claim effected without the Company’s written consent. The Company shall not
\nsettle any action or claim in any manner which would impose any penalty or
\nlimitation on Indemnitee without Indemnitee’s written consent. Neither the
\nCompany nor the Indemnitee will unreasonably withhold their consent to any
\nproposed settlement. The Company shall not be liable to indemnify the Indemnitee
\nunder this Agreement with regard to any judicial award if the Company was not
\ngiven a reasonable and timely opportunity, at its expense, to participate in the
\ndefense of such action.<\/p>\n
15. BINDING EFFECT. This Agreement shall be binding upon and inure to the
\nbenefit of and be enforceable by the parties hereto and their respective
\nsuccessors, assigns, including any direct or indirect successor by purchase,
\nmerger, consolidation or otherwise to all or substantially all of the business
\nand\/or assets of the Company, spouses, heirs, and personal and legal
\nrepresentatives. The Company shall require and cause any successor (whether
\ndirect or indirect by purchase, merger, consolidation or otherwise) to all,
\nsubstantially all, or a substantial part, of the business and\/or assets of the
\nCompany, by written agreement in form and substance satisfactory to the
\nIndemnitee, expressly to assume and agree to perform this Agreement in the same
\nmanner and to the same extent that the Company would be required to perform if
\nno such succession had taken place. This Agreement shall continue in effect
\nregardless of whether Indemnitee continues to serve as a director or officer of
\nthe Company or of any other enterprise at the Company’s request.<\/p>\n
16. SEVERABILITY. The provisions of this Agreement shall be severable in the
\nevent that any of the provisions hereof (including any provision within a single
\nsection, paragraph or sentence) is held by a court of competent jurisdiction to
\nbe invalid, void or otherwise unenforceable, and the remaining provisions shall
\nremain enforceable to the fullest extent permitted by law. Furthermore, to the
\nfullest extent possible, the provisions of this Agreement (including, without
\nlimitation, each portion of this Agreement containing any provision held to be
\ninvalid, void or otherwise unenforceable, that is not itself invalid, void or
\nunenforceable) shall be construed so as to give effect to the intent manifested
\nby the provision held invalid, illegal or unenforceable.<\/p>\n
6
\n 28<\/p>\n
17. GOVERNING LAW. This Agreement shall be governed by and construed and
\nenforced in accordance with the laws of the State of Delaware applicable to
\ncontracts made and to be performed in such State without giving effect to the
\nprinciples of conflicts of laws.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
\nAgreement as of the _______________ day of __________________, 19___.<\/p>\n
McKESSON HBOC, INC.<\/p>\n
By: ________________________________
\n Name:
\n Title:<\/p>\n
________________________________
\n [Indemnitee]<\/p>\n
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