Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
McKESSON CORPORATION
(Duly Adopted in Accordance with Section 242 and 245 of
the Delaware General Corporation Law)
Originally Incorporated on July 7, 1994
Under the Name SP Ventures, Inc.
ARTICLE I.
The name of the Corporation is McKesson Corporation.
ARTICLE II.
The address of the registered office of the Corporation within the State of Delaware is 2711
Centerville Road, Suite 400, Wilmington 19808, County of New Castle. The name of the registered
agent of the Corporation at such address is The Prentice-Hall Corporation System, Inc.
ARTICLE III.
The purpose of the Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware.
ARTICLE IV.
The total number of shares of stock of all classes which the Corporation has authority to issue is
900,000,000 shares, divided into 100,000,000 shares of Preferred Stock, par value $0.01 per share
(herein called the Series Preferred Stock) and 800,000,000 shares of Common Stock, par value
$0.01 per share (herein called Common Stock). The aggregate par value of all shares is
$9,000,000.
The Board of Directors of the Corporation is expressly authorized, as shall be stated and expressed
in the resolution or resolutions it adopts, subject to limitations prescribed by law and the
provisions of this Article IV, to provide for the issuance of the shares of Series Preferred
1
Stock in one or more class or series, in addition to the shares thereof specifically provided for
in this Article IV, and by filing a certificate pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be included in each such series,
and to fix for each such class or series such voting powers, full or limited, or no voting powers,
and such distinctive designations, powers, preferences and relative, participating, optional or
other special rights and such qualifications, limitations or restrictions thereof, including
without limitation, the authority to provide that any such class or series may be (i) subject to
redemption at such time or times and at such price or prices; (ii) entitled to receive dividends
(which may be cumulative or non-cumulative) at such rates, on such conditions, and at such times,
and payable in preference to, or in relation to, the dividends payable on any other class or
classes or any other series; (iii) entitled to such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation; (iv) convertible into, or exchangeable for, shares
of any other class or classes of stock, or of any other series of the same or any other class or
classes of stock, of the Corporation at such price or prices or at such rates of exchange and with
such adjustments; or (v) subject to the terms and amounts of any sinking fund provided for the
purchase or redemption of the shares of such series; all as may be stated in such resolution or
resolutions.
The number of authorized shares of Series Preferred Stock may be
increased or decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the Common Stock, without a vote of the holders of
the Series Preferred Stock, as the case may be, or of any series thereof, unless a vote of any such
holders is required pursuant to the provisions of this Article IV or the certificate or
certificates establishing any additional series of such stock.
A description of each class of the Corporations stock, with the powers, designations, preferences
and relative, participating, optional and other rights, if any, and the qualifications, limitations
and restrictions thereof, is as follows:
I. SERIES PREFERRED STOCK
A. General Provisions Relating to All Series
1. The Board of Directors shall have authority to classify and reclassify any unissued shares of
the Series Preferred Stock from time to time by setting or changing in any one or more respects the
powers, designations, preferences and relative, participating, optional and other rights, if any,
and the qualifications, limitations and restrictions of the Series Preferred Stock. Subject to the
foregoing, the power of the Board of Directors to classify and reclassify any of the shares of
Series Preferred Stock shall include, without limitation, subject to the provisions of this
Certificate of Incorporation, authority to classify or reclassify any unissued shares of such stock
into one or more series of Series Preferred Stock, and to divide and classify shares of any series
into one or more series of Series Preferred Stock by determining, fixing or altering one or more of
the following:
(a) The distinctive designation of such series and the number of shares to constitute such
series; provided that, unless otherwise prohibited by the terms of such or any other series, the
number of shares of any series may be decreased by the Board of Directors in connection with any
classification or reclassification of unissued shares and the number of shares of such series
may be increased by the Board of Directors in connection with any such classification or
reclassification, and any shares of any series which have been redeemed, purchased, otherwise
acquired or converted into shares of Common Stock or any other series shall remain part of the
authorized Series Preferred Stock and be subject to classification and reclassification as
provided in this Section.
2
(b) Whether or not and, if so, the rates, amounts and times at which, and the conditions under
which, dividends shall be payable on shares of such series, whether any such dividends shall
rank senior or junior to or on a parity with the dividends payable on any other series of Series
Preferred Stock, and the status of any such dividends as cumulative, cumulative to a limited
extent or non-cumulative and as participating or non-participating.
(c) Whether or not shares of such series shall have voting rights, in addition to any voting
rights provided by law and, if so, the terms of such voting rights.
(d) Whether or not shares of such series shall have conversion or exchange privileges and, if
so, the terms and conditions thereof, including provision for adjustment of the conversion or
exchange rate in such events or at such times as the Board of Directors shall determine.
(e) Whether or not shares of such series shall be subject to redemption and, if so, the terms
and conditions of such redemption, including the date or dates upon or after which they shall be
redeemable and the amount per share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates; and whether or not there shall be any
sinking fund or purchase account in respect thereof, and if so, the terms thereof.
(f) The rights of the holders of shares of such series upon the liquidation, dissolution or
winding up of the affairs of, or upon any distribution of the assets of, the Corporation, which
rights may vary depending upon whether such liquidation, dissolution or winding up is voluntary
or involuntary and, if voluntary, may vary at different dates, and whether such rights shall
rank senior or junior to or on a parity with such rights of any other series of Series Preferred
Stock.
(g) Whether or not there shall be any limitations applicable, while shares of such series are
outstanding, upon the payment of dividends or making of distributions on, or the acquisition of,
or the use of moneys for purchase or redemption of, any stock of the Corporation, or upon any
other action of the Corporation, including action under this Section, and, if so, the terms and
conditions thereof.
(h) Any other powers, designations, preferences and relative, participating, optional and other
rights, if any, and any other qualifications, limitations and restrictions, on the shares of
such series, not inconsistent with law and this Certificate of Incorporation.
2. For the purposes hereof and of any certificate providing for the classification or
reclassification of any shares of Series Preferred Stock or of any other charter document of the
Corporation (unless otherwise provided in any such certificate or document), any class or series of
stock of the Corporation shall be deemed to rank:
(a) Prior to a particular class or series of stock if the holders of such class or classes or
series shall be entitled to the receipt of dividends or of amounts distributable in the event of
any liquidation, dissolution or winding up, as the case may be, in preference to or with
priority over the holders of such particular class or series of stock;
(b) On a parity with a particular class or series of stock, whether or not the dividend rates,
dividend payment dates, voting rights or redemption or liquidation prices per share thereof, be
different from those of such particular class or series of stock, if the rights of holders of
such class or classes or series to the receipt of dividends or of amounts distributable in event
of any liquidation, dissolution or winding up, as the case may be, shall be neither (i) in
preference to, or with priority over, nor (ii) subject or subordinate to, the rights of holders
of such particular class or series of stock in respect of the receipt of dividends or of amounts
distributable in the event of any liquidation, dissolution or winding up of the Corporation, as
3
the case may be; and
(c) Junior to a particular class or series of stock if the rights of the holders of such class
or classes or series shall be subject or subordinate to the rights of the holders of such
particular class or series of stock in respect of the receipt of dividends or of amounts
distributable in the event of any liquidation, dissolution or winding up, as the case may be.
B. Series A Junior Participating Preferred Stock
1.
Designation and Amount.
The shares of this series shall be designated as Series A Junior
Participating Preferred Stock and the number of shares constituting such series shall initially be
10,000,000, par value $0.01 per share, such number of shares to be subject to increase or decrease
by action of the Board of Directors as evidenced by a certificate or certificates evidencing such
change.
2.
Dividends and Distributions.
(a) The holders of shares of Series A Junior Participating Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the first business day of January, April,
July and October in each year (each such date being referred to herein as a Series A Quarterly
Dividend Payment Date), commencing on the first Series A Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Series A Junior Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (i) $10.00
or (ii) subject to the provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend payable in shares
of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock since the immediately preceding Series A Quarterly
Dividend Payment Date, or, with respect to the first Series A Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of Series A Junior Participating
Preferred Stock. In the event the Corporation shall at any time after November 1, 1994 (the
Rights Declaration Date) (A) declare any dividend on Common Stock payable in shares of Common
Stock, (B) subdivide the outstanding Common Stock, or (C) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount to which holders of shares of
Series A Junior Participating Preferred Stock were entitled immediately prior to such event
under clause (ii) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in paragraph (a) above immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Series A Quarterly Dividend Payment Date and the next
subsequent Series A Quarterly Dividend Payment Date, a dividend of $10.00 per share on the
Series A Junior Participating Preferred Stock shall nevertheless be payable on such subsequent
Series A Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Series A Quarterly Dividend Payment Date next preceding
the date of issue of such shares of Series A Junior Participating Preferred
4
Stock, unless the date of issue of such shares is prior to the record date for the first Series
A Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a Series A Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders of
shares of Series A Junior Participating Preferred Stock entitled to receive a quarterly dividend
and before such Series A Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Series A Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of
Series A Junior Participating Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the date fixed for the payment thereof.
3.
Voting Rights.
The holders of shares of Series A Junior Participating Preferred Stock shall have
the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall
at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case the number of
votes per share to which holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such number by a
fraction the numerator of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares of Common Stock shall vote together as
one class on all matters submitted to a vote of stockholders of the Corporation.
|
(c)
|
|
(i) If at any time dividends on any Series A Junior Participating Preferred Stock shall
be in arrears in an amount equal to six (6) quarterly dividends thereon, the occurrence of
such contingency shall mark the beginning of a period (herein called a default period)
which shall extend until such time when all accrued and unpaid dividends for all previous
quarterly dividend periods and for the current quarterly dividend period on all shares of
Series A Junior Participating Preferred Stock then outstanding shall have been declared and
paid or set apart for payment. During each default period, all holders of Series Preferred
Stock, (including holders of the Series A Junior Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6) quarterly dividends thereon, voting as a
class, irrespective of series, shall have the right to elect two (2) Directors.
|
|
|
|
|
(ii) During any default period, such voting right of the holders of Series A Junior
Participating Preferred Stock may be exercised initially at a special meeting called
pursuant to subparagraph (iii) of this Section 3(c) or at any annual meeting of
stockholders, and thereafter at annual meetings of stockholders, provided that neither such
voting right nor the right of the holders of any other series of Series Preferred Stock, if
any, to increase, in certain cases, the authorized number of Directors shall be exercised
unless the holders of ten percent (10%) in number of shares of Series Preferred Stock
|
5
|
|
|
outstanding shall be present in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders of Series Preferred Stock of
such voting right. At any meeting at which the holders of Series Preferred Stock shall
exercise such voting right initially during an existing default period, they shall have the
right, voting as a class, to elect Directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two (2) Directors or, if such right is exercised at an
annual meeting, to elect two (2) Directors. If the number which may be so elected at any
special meeting does not amount to the required number, the holders of the Series Preferred
Stock shall have the right to make such increase in the number of Directors as shall be
necessary to permit the election by them of the required number. After the holders of the
Series Preferred Stock shall have exercised their right to elect Directors in any default
period and during the continuance of such period, the number of Directors shall not be
increased or decreased except by vote of the holders of Series Preferred Stock as herein
provided or pursuant to the rights of any equity securities ranking senior to or
pari
passu
with the Series A Junior Participating Preferred Stock.
|
|
|
|
|
(iii) Unless the holders of Series Preferred Stock shall, during an existing default period,
have previously exercised their right to elect Directors, the Board of Directors may order,
or any stockholder or stockholders owning in the aggregate not less than ten percent (10%)
of the total number of shares of Series Preferred Stock outstanding, irrespective of series,
may request, the calling of a special meeting of the holders of Series Preferred Stock,
which meeting shall thereupon be called by the President, a Vice-President or the Secretary
of the Corporation. Notice of such meeting and of any annual meeting at which holders of
Series Preferred Stock are entitled to vote pursuant to this paragraph (c)(iii) shall be
given to each holder of record of Series Preferred Stock by mailing a copy of such notice to
him at his last address as the same appears on the books of the Corporation. Such meeting
shall be called for a time not earlier than 20 days and not later than 60 days after such
order or request or in default of the calling of such meeting within 60 days after such
order or request, such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the total number of
shares of Series Preferred Stock outstanding. Notwithstanding the provisions of this
paragraph (c)(iii), no such special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of the stockholders.
|
|
|
|
|
(iv) In any default period, the holders of Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be entitled to elect the whole number of
Directors until the holders of Series Preferred Stock shall have exercised their right to
elect two (2) Directors voting as a class, after the exercise of which right (A) the
Directors so elected by the holders of Series Preferred Stock shall continue in office until
their successors shall have been elected by such holders or until the expiration of the
default period, and (B) any vacancy in the Board of Directors may (except as provided in
paragraph (c)(ii) of this Section 3) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of stock which elected the
Director whose office shall have become vacant. References in this paragraph (c) to
Directors elected by the holders of a particular class of stock shall include Directors
elected by such Directors to fill vacancies as provided in clause (B) of the preceding
sentence.
|
|
|
|
|
(v) Immediately upon the expiration of a default period, (A) the right of the holders of
Series Preferred Stock as a class to elect Directors shall cease, (B) the term of any
Directors elected by the holders of Series Preferred Stock as a class shall terminate, and
(C) the number of Directors shall be such number as may be provided for in this Certificate
of Incorporation or the By-laws of the Corporation irrespective of any increase
|
6
|
|
|
made pursuant to the provisions of paragraph (c)(ii) of this Section 3 (such number being
subject, however, to change thereafter in any manner provided by law or in this Certificate
of Incorporation or the By-laws of the Corporation). Any vacancies in the Board of Directors
effected by the provisions of clauses (B) and (C) in the preceding sentence may be filled by
a majority of the remaining Directors.
|
(d) Except as set forth herein or as otherwise required by applicable law, holders of Series A
Junior Participating Preferred Stock shall have no special voting rights and their consent shall
not be required (except to the extent they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
4.
Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions payable on the Series A
Junior Participating Preferred Stock as provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not declared, on shares of
Series A Junior Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on any shares of
stock ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Junior Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares
of any stock of the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock ranking on a parity with the Series A
Junior Participating Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the Corporation unless the Corporation could,
under paragraph (a) of this Section 4, purchase or otherwise acquire such shares at such time
and in such manner.
7
5.
Reacquired Shares.
Any shares of Series A Junior Participating Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Series Preferred Stock and may be reissued as part of a new
series of Series Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth herein.
6.
Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the Corporation,
no distribution shall be made to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of Series A Junior Participating
Preferred Stock shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of such payment (the
Series A Liquidation Preference). Following the payment of the full amount of the Series A
Liquidation Preference, no additional distributions shall be made to the holders of shares of
Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the Common Adjustment) equal to the
quotient obtained by dividing (i) the Series A Liquidation Preference by (ii) 100 (as
appropriately adjusted as set forth in subparagraph C below to reflect such events as stock
splits, stock dividends and recapitalizations with respect to the Common Stock) (such number in
clause (ii), the Adjustment Number). Following the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in respect of all outstanding shares of Series
A Junior Participating Preferred Stock and Common Stock, respectively, holders of Series A
Junior Participating Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed in the ratio of the
Adjustment Number to 1 with respect to such Preferred Stock and Common Stock, on a per share
basis, respectively.
(b) In the event, however, that there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation preferences of all
other series of preferred stock, if any, which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their respective liquidation preferences. In the
event, however, that there are not sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be distributed ratably to the holders of
Common Stock.
(c) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately prior to such
event.
7.
Consolidation, Merger, etc.
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property, then in any such case the shares of
Series A Junior Participating Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or any other
8
property (payable in kind), as the case may be, into which or for which each share of Common Stock
is changed or exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (a) declare any dividend on Common Stock payable in shares of Common Stock, (b)
subdivide the outstanding Common Stock, or (c) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series A Junior Participating Preferred Stock shall
be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to such event.
8.
No Redemption.
The shares of Series A Junior Participating Preferred Stock shall not be
redeemable.
9.
Ranking.
The Series A Junior Participating Preferred Stock shall rank junior to all other series
of the Corporations Series Preferred Stock as to the payment of dividends and the distribution of
assets, unless the terms of any such series shall provide otherwise.
10.
Amendment.
This Certificate of Incorporation shall not be further amended in any manner which
would materially alter or change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely without the affirmative vote of the
holders of a majority of the outstanding shares of Series A Junior Participating Preferred Stock,
voting separately as a class.
11.
Fractional Shares.
Series A Junior Participating Preferred Stock may be issued in fractions of
a share which shall entitle the holder, in proportion to such holders fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series A Junior Participating Preferred Stock.
II. COMMON STOCK
A. Dividends. Subject to all of the rights of the Series Preferred Stock, dividends
may be paid
upon the Common Stock as and when declared by the Board of Directors out of funds legally available
for the payment of dividends.
B. Liquidation Rights.
In the event of any liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary, and after the holders of the Series Preferred Stock
shall have been paid in full amounts to which they respectively shall be entitled, or an amount
sufficient to pay the aggregate amount to which such holders shall be entitled shall have been
deposited in trust with a bank or trust company having its principal office in the Borough of
Manhattan, City, County and State of New York, having a capital, undivided profits and surplus
aggregating at least $5,000,000, for the benefit of the holders of the Series Preferred Stock, the
remaining net assets of the Corporation shall be distributed pro rata to the holders of the Common
Stock.
C. Voting Rights.
Except as otherwise expressly provided with respect to the Series Preferred
Stock and except as otherwise may be required by law, the Common Stock shall have the exclusive
right to vote for the election of directors and for all other purposes and each holder of Common
Stock shall be entitled to one vote for each share held.
9
ARTICLE V.
A. Board of Directors of the Corporation.
1.
General Provisions.
The business and affairs of the Corporation shall be managed under the
direction of the Board of Directors. The exact number of directors shall be fixed from time to time
by, or in the manner provided in, the By-Laws of the Corporation and may be increased or decreased
as therein provided. Directors of the Corporation need not be elected by ballot unless required by
the By-Laws.
2.
Term.
Each nominee elected at an annual meeting of stockholders to serve as director shall hold
office for a term commencing on the date of the annual meeting, or such later date as shall be
determined by the Board of Directors, and ending on the next annual meeting of stockholders and
until such directors successor is elected and qualified, or until such directors earlier
resignation or removal. A director may be removed from office, with or without cause, by the
holders of a majority of the shares then entitled to vote at an election of directors and, subject
to such removal, death, resignation, retirement or disqualification, shall hold office until such
directors term expires and until such directors successor shall be elected and qualified. In no
case shall a decrease in the number of directors shorten the term of any incumbent director.
3.
Directors Appointed by a Specific Class of Stockholders.
To the extent that any holders of any
class or series of stock other than Common Stock issued by the Corporation shall have the separate
right, voting as a class or series, to elect directors, the directors elected by such class or
series shall be deemed to constitute an additional class of directors and shall have a term of
office for one year or such other period as may be designated by the provisions of such class or
series providing such separate voting right to the holders of such class or series of stock, and
any such class of directors shall be in addition to the classes designated above.
ARTICLE VI.
A. General Provisions.
The following provisions are hereby adopted for the purpose of defining,
limiting and regulating the powers of the Corporation and of its directors and stockholders:
1.
Amendments to the Certificate of Incorporation.
Subject to the provisions of applicable law, the
Corporation reserves the right from time to time to make any amendment to its Certificate of
Incorporation, now or hereafter authorized by law, including any amendment which alters the
contract rights as expressly set forth therein of any outstanding stock.
2.
Amendments to the By-Laws.
The Board of Directors is expressly authorized to adopt, alter or
repeal the By-Laws of the Corporation in whole or in part at any regular or special meeting of the
Board of Directors, by vote of a majority of the entire Board of Directors. The By-Laws may also be
adopted, altered or repealed in whole or in part at any annual or special meeting of the
stockholders by the affirmative vote of a majority of the shares of the Corporation outstanding and
entitled to vote thereon.
3.
No Preemptive Rights.
No holder of any class of stock of the Corporation, whether now or
hereafter authorized or outstanding, shall have any preemptive, preferential or other right to
subscribe for or purchase any class of the Corporations stock, whether now or hereafter authorized
or outstanding, which it may at any time issue or sell, or to subscribe for or purchase any notes,
debentures, bonds or other securities which it may at any time issue or sell, whether or not the
same be convertible into or exchangeable for or carry options or warrants to purchase
10
shares of any class of the Corporations stock or other securities, or to receive or purchase any
warrants or options which may be issued or granted evidencing the right to purchase any such stock
or other securities, it being intended by this Section 3 that all preemptive rights of any kind
applicable to securities of the Corporation are eliminated.
4.
Vote Required to Take Action; Action by Written Consent.
Except as otherwise provided in this
Certificate of Incorporation or the By-Laws or as otherwise provided by applicable law, the
Corporation may take or authorize any action upon the affirmative vote of the majority of shares
present in person or represented by proxy at the meeting and entitled to vote on the subject matter
thereof. Action shall be taken by stockholders of the Corporation only at annual or special
meetings of stockholders, and stockholders may act in lieu of a meeting only by unanimous written
consent.
5.
Compensation of Directors.
The Board of Directors may determine from time to time the amount and
type of compensation which shall be paid to its members for service on the Board of Directors. The
Board of Directors shall also have the power, in its discretion, to provide for and to pay to
directors rendering services to the Corporation not ordinarily rendered by directors, as such,
special compensation appropriate to the value of such services, as determined by the Board from
time to time.
6.
Interested Transactions.
No contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of the Corporations directors or officers
are directors or officers, or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or transaction, or solely
because his, her or their votes are counted for such purpose if (i) the material facts as to his,
her or their relationship or interest and as to the contract or transaction are disclosed or are
known to the Board of Directors or committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (ii) the material
facts as to his, her or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
7.
Indemnification.
The Corporation shall indemnify (a) its directors to the fullest extent
permitted by the laws of the State of Delaware now or hereafter in force, including the advancement
of expenses under the procedures provided by such laws, (b) all of its officers to the same extent
as it shall indemnify its directors, and (c) its officers who are not directors to such further
extent as shall be authorized by the Board of Directors and be consistent with law. Subject only to
any limitations prescribed by the laws of the State of Delaware now or hereafter in force, the
foregoing shall not limit the authority of the Corporation to indemnify the directors, officers and
other employees and agents of this Corporation consistent with law and shall not be deemed to be
exclusive of any rights to which those indemnified may be entitled as a matter of law or under any
resolution, By-Law provision, or agreement.
8.
Court-Ordered Meetings of Creditors and/or Stockholders.
Whenever a compromise or arrangement is
proposed between this Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
11
Corporation or of any creditor or stockholder thereof, or on the application of any receiver or
receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such manner as such court
directs. If a majority in number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may
be, agree to any compromise or arrangement and to any reorganization of this Corporation as a
consequence of such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which such application has been made, be
binding on all the creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this Corporation.
9.
Liability of Directors.
To the fullest extent permitted by Delaware statutory or decisional law,
as amended or interpreted, no director of this Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
This Section 9 does not affect the availability of equitable remedies for breach of fiduciary
duties.
12
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of
Incorporation to be executed and attested to by its duly authorized officers this 27th day of July,
2011.
|
|
|
|
|
|
McKESSON CORPORATION
|
|
|
By:
|
/s/ Willie C. Bogan
|
|
|
|
Willie C. Bogan
|
|
|
|
Associate General Counsel and Secretary
|
|
|
|
|
|
|
Attest:
|
|
/s/ Melissa Wu
|
|
Melissa Wu
|
|
Assistant Secretary
|
|
|
13
Exhibit 3.2
AMENDED AND
RESTATED
BY-LAWS
of
McKESSON CORPORATION
A Delaware Corporation
As amended July 27, 2011
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
ARTICLE I Offices
|
|
|
3
|
|
Section 1. Registered Office
|
|
|
3
|
|
Section 2. Other Offices
|
|
|
3
|
|
|
|
|
|
|
ARTICLE II Stockholders Meetings
|
|
|
3
|
|
Section 1. Place of Meetings
|
|
|
3
|
|
Section 2. Annual Meetings
|
|
|
3
|
|
Section 3. Special Meetings
|
|
|
4
|
|
Section 4. Notice of Meetings
|
|
|
4
|
|
Section 5. Quorum
|
|
|
4
|
|
Section 6. Voting Rights
|
|
|
5
|
|
Section 7. Voting Procedures and Inspectors of Elections
|
|
|
6
|
|
Section 8. List of Stockholders
|
|
|
7
|
|
Section 9. Stockholder Proposals at Annual Meetings
|
|
|
7
|
|
Section 10. Nominations of Persons for Election to the Board of Directors
|
|
|
9
|
|
|
|
|
|
|
ARTICLE III Directors
|
|
|
11
|
|
Section 1. General Powers
|
|
|
11
|
|
Section 2. Number and Term of Office; Removal
|
|
|
11
|
|
Section 3. Election of Directors
|
|
|
12
|
|
Section 4. Vacancies
|
|
|
12
|
|
Section 5. Resignations
|
|
|
13
|
|
Section 6. Annual Meetings
|
|
|
13
|
|
Section 7. Regular Meetings
|
|
|
13
|
|
Section 8. Special Meetings; Notice
|
|
|
13
|
|
Section 9. Quorum and Manner of Acting
|
|
|
14
|
|
Section 10. Consent in Writing
|
|
|
14
|
|
Section 11. Committees
|
|
|
14
|
|
Section 12. Telephone Meetings
|
|
|
15
|
|
Section 13. Compensation
|
|
|
15
|
|
Section 14. Interested Directors
|
|
|
15
|
|
Section 15. Directors Elected by Special Class or Series
|
|
|
16
|
|
|
|
|
|
|
ARTICLE IV Officers
|
|
|
16
|
|
Section 1. Designation of Officers
|
|
|
16
|
|
Section 2. Term of Office; Resignation; Removal
|
|
|
16
|
|
Section 3. Vacancies
|
|
|
16
|
|
Section 4. Authority of Officers
|
|
|
16
|
|
Section 5. Divisional Titles
|
|
|
17
|
|
Section 6. Salaries
|
|
|
17
|
|
|
|
|
|
|
ARTICLE V Execution of Corporate Instruments And Voting of Securities Owned By the Corporation
|
|
|
17
|
|
Section 1. Execution of Instruments
|
|
|
17
|
|
i
|
|
|
|
|
|
|
Page
|
|
Section 2. Voting of Securities Owned by the Corporation
|
|
|
17
|
|
|
|
|
|
|
ARTICLE VI Shares of Stock and Other Securities
|
|
|
18
|
|
Section 1. Form and Execution of Certificates
|
|
|
18
|
|
Section 2. Lost Certificates
|
|
|
18
|
|
Section 3. Transfers
|
|
|
18
|
|
Section 4. Fixing Record Dates
|
|
|
18
|
|
Section 5. Registered Stockholders
|
|
|
19
|
|
Section 6. Regulations
|
|
|
19
|
|
Section 7. Other Securities of the Corporation
|
|
|
19
|
|
|
|
|
|
|
ARTICLE VII Corporate Seal
|
|
|
20
|
|
|
|
|
|
|
ARTICLE VIII Indemnification of Officers, Directors, Employees and Agents
|
|
|
20
|
|
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other Than Those by
or in the Right of the Corporation
|
|
|
20
|
|
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of
the Corporation
|
|
|
20
|
|
Section 3. Authorization of Indemnification
|
|
|
21
|
|
Section 4. Good Faith Defined
|
|
|
21
|
|
Section 5. Indemnification by a Court
|
|
|
21
|
|
Section 6. Expenses Payable in Advance
|
|
|
22
|
|
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses
|
|
|
22
|
|
Section 8. Insurance
|
|
|
22
|
|
Section 9. Certain Definitions
|
|
|
22
|
|
Section 10. Survival of Indemnification and Advancement of Expenses
|
|
|
23
|
|
Section 11. Limitation on Indemnification
|
|
|
23
|
|
Section 12. Indemnification of Employees and Agents
|
|
|
23
|
|
Section 13. Effect of Amendment
|
|
|
23
|
|
Section 14. Authority to Enter into Indemnification Agreements
|
|
|
23
|
|
|
|
|
|
|
ARTICLE IX Notices
|
|
|
23
|
|
|
|
|
|
|
ARTICLE X Amendments
|
|
|
24
|
|
ii
AMENDED AND
RESTATED
BY-LAWS
OF
McKESSON CORPORATION
A Delaware Corporation
ARTICLE I
OFFICES
Section 1.
Registered Office
. The address of the registered office of Corporation within the State
of Delaware is 2711 Centerville Road, City of Wilmington, 19808, County of New Castle. The name of
the registered agent of the Corporation at such address is The Prentice-Hall Corporation System,
Inc.
Section 2.
Other Offices
. The Corporation shall also have and maintain an office or principal place
of business at One Post Street, San Francisco, California and may also have offices at such other
places, both within and without the State of Delaware, as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE II
Stockholders Meetings
Section 1.
Place of Meetings
. Meetings of the stockholders of the Corporation shall be held at such
place, either within or without the State of Delaware, as may be designated from time to time by
the Board of Directors, or, if not so designated, then at the office of the Corporation required to
be maintained pursuant to Section 2 of ARTICLE I hereof.
Section 2.
Annual Meetings
. Each annual meeting of stockholders of the Corporation for the purpose
of election of directors and for such other business as may lawfully come before the stockholders
at such meeting, shall be held on such date and at such time as may be designated from time to time
by the Board of Directors, or, if not so designated, then at 10:00 a.m. on the last Wednesday in
July in each year if not a legal holiday, and, if a legal holiday, at the same hour and place on
the next succeeding day not a holiday.
3
Section 3.
Special Meetings
. Special meetings of the stockholders of the Corporation may be
called, for any purpose or purposes, by the Chairman of the Board or the President or the Board of
Directors at any time. Stockholders may not call special meetings of the stockholders of the
Corporation.
Section 4.
Notice of Meetings.
(a)
Except as otherwise provided by law or the Certificate of Incorporation, written notice of each
meeting of stockholders, specifying the place, date and hour and purpose or purposes of the
meeting, shall be given not less than 10 nor more than 60 days before the date of the meeting to
each stockholder entitled to vote thereat, directed to such stockholders address as it appears
upon the books of the Corporation; except that where the matter to be acted on is a merger or
consolidation of the Corporation or a sale, lease or exchange of all or substantially all of its
assets, such notice shall be given not less than 20 nor more than 60 days prior to such meeting.
Such notice may be given in any form or manner permitted by the Delaware General Corporation Law,
including Section 232 thereof relating to notice by electronic transmission.
(b)
If at any meeting action is proposed to be taken which, if taken, would entitle stockholders
fulfilling the requirements of Section 262(d) of the Delaware General Corporation Law to an
appraisal of the fair value of their shares, the notice of such meeting shall contain a statement
to that effect and shall be accompanied by a copy of that statutory section.
(c)
When a meeting is adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the adjournment is
taken unless the adjournment is for more than thirty days, or unless after the adjournment a new
record date is fixed for the adjourned meeting, in which event a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
(d)
Notice of the time, place and purpose of any meeting of stockholders may be waived in writing,
either before or after such meeting, and to the extent permitted by law, will be waived by any
stockholder by such stockholders attendance thereat, in person or by proxy. Any stockholder so
waiving notice of such meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
(e)
Unless and until voted, every proxy shall be revocable at the pleasure of the person who
executed it or of such persons legal representatives or assigns, except in those cases where an
irrevocable proxy permitted by statute has been given.
Section 5.
Quorum
. At all meetings of stockholders, except where otherwise provided by law, the
Certificate of Incorporation, or these By-Laws, the presence, in person or by proxy duly
authorized, of the holders of a majority of the outstanding shares of stock entitled to vote shall
constitute a quorum for the transaction of business. Shares, the voting of which at such meeting
has been enjoined, or which for any reason cannot be lawfully voted at such meeting, shall not be
counted to determine a quorum at such meeting.
In the absence of a quorum any meeting of stockholders may be adjourned, from time to time, by vote
of the holders of a majority of the shares represented thereat, but no other business shall be
transacted at such meeting. At such adjourned meeting at which a quorum is present or represented
4
any business may be transacted which might have been transacted at the original meeting. The
stockholders present at a duly called or convened meeting, at which a quorum is present, may
continue to transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the affirmative vote of the majority of shares present in person or
represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of
the stockholders.
In the event that at any meeting at which the holders of more than one class or series of the
Corporations capital stock are entitled to vote as a class, a quorum of any such class or series
is lacking, the holders of any class or series represented by a quorum may proceed with the
transaction of the business to be transacted by such class or series, and if such business is the
election of directors, the directors whose successors shall not have been elected shall continue in
office until their successors shall have been duly elected and shall have qualified.
Section 6.
Voting Rights.
(a)
Except as otherwise provided by law, only persons in whose names shares entitled to vote stand
on the stock records of the Corporation on the record date for determining the stockholders
entitled to vote at such meeting shall be entitled to vote at such meeting. Shares standing in the
names of two or more persons shall be voted or represented in accordance with the determination of
the majority of such persons, or, if only one of such persons is present in person or represented
by proxy, such person shall have the right to vote such shares and such shares shall be deemed to
be represented for the purpose of determining a quorum.
(b)
Every person entitled to vote or execute consents shall have the right to do so either in
person or by an agent or agents authorized by a written proxy executed by such person or such
persons duly authorized agent, which proxy shall be filed with the Secretary of the Corporation at
or before the meeting at which it is to be used. Said proxy so appointed need not be a stockholder.
No proxy shall be voted on after three years from its date unless the proxy provides for a longer
period.
(c)
Without limiting the manner in which a stockholder may authorize another person or persons to
act for such stockholder as proxy pursuant to subsection (b) of this Section, the following shall
constitute a valid means by which a stockholder may grant such authority:
(1) A stockholder may execute a writing authorizing another person or persons to act
for such stockholder as proxy. Execution may be accomplished by the stockholder or such
stockholders authorized officer, director, employee or agent signing such writing or
causing such stockholders signature to be affixed to such writing by any reasonable means
including, but not limited to, by facsimile signature.
(2) A stockholder may authorize another person or persons to act for such stockholder
as proxy by transmitting or authorizing the transmission of a telegram, cablegram, or other
means of electronic transmission to the person who will be the holder of the proxy or to a
proxy solicitation firm, proxy support service organization or like agent duly authorized
by the person who will be the holder of the proxy to receive such
5
transmission, provided that any such telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was authorized by
such stockholder. If it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such other persons
making that determination shall specify the information upon which they relied.
(d)
Any copy, facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to subsection (c) of this Section may be substituted or used in lieu
of the original writing or transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or transmission.
Section 7.
Voting Procedures and Inspectors of Elections.
(a)
The Corporation shall, in advance of any meeting of stockholders, appoint one or more
inspectors to act at the meeting and make a written report thereof. The Corporation may designate
one or more persons as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person presiding at the
meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his or her ability.
(b)
The inspectors shall (i) ascertain the number of shares outstanding and the voting power of
each, (ii) determine the shares represented at a meeting and the validity of proxies and ballots,
(iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of
the disposition of any challenges made to any determination by the inspectors, and (v) certify
their determination of the number of shares represented at the meeting, and their count of all
votes and ballots. The inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
(c)
The date and time of the opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No ballot, proxies or votes,
nor any revocations thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery upon application by a stockholder shall determine
otherwise.
(d)
In determining the validity and counting of proxies and ballots, the inspectors shall be
limited to an examination of the proxies, any envelopes submitted with those proxies, any
information provided in accordance with Section 212(c)(2) of the Delaware General Corporation Law,
ballots and the regular books and records of the Corporation, except that the inspectors may
consider other reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more
votes than the holder of a proxy is authorized by the record owner to cast or more votes than the
stockholder holds of record. If the inspectors consider other reliable information for the limited
purpose permitted herein, the inspectors at the time they make their certification pursuant to
subsection (b)(v) of this Section shall specify the precise information considered by them,
6
including the person or persons from whom they obtained the information, when the information was
obtained, the means by which the information was obtained and the basis for the inspectors belief
that such information is accurate and reliable.
(e)
The provisions of this Section 7 shall not apply to any annual meeting of stockholders held
prior to the annual meeting of stockholders held in 1995.
Section 8.
List of Stockholders
. The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at said meeting, arranged in alphabetical order, showing the
address of and the number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held and which place shall be specified in the notice of the
meeting, or, if not specified, at the place where said meeting is to be held, and the list shall be
produced and kept at the time and place of meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 9.
Stockholder Proposals at Annual Meetings
.
(a)
At an annual meeting of the stockholders, only such business (other than nominations for
election to the Board of Directors, which must comply with the provisions of ARTICLE II, Section
10) shall be conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized
committee thereof) or (ii) otherwise properly brought before the meeting by or at the direction of
the Board of Directors (or any duly authorized committee thereof) or (iii) otherwise properly
brought before the meeting by a stockholder of the Corporation (A) who is a stockholder of record
on the date of the giving of the notice provided for in this Section 9 and on the record date for
the determination of stockholders entitled to vote at such annual meeting and (B) who complies with
the notice procedures set forth in this Section 9.
(b)
In addition to any other applicable requirements, for business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation. To be timely, a stockholders notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the Corporation, not less
than 90 days nor more than 120 days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within 25 days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close of business on the
10th day following the day on which such notice of the date of the annual meeting was mailed or
such public disclosure (as defined below) of the date of the annual meeting was made, whichever
first occurs. In no event shall the public disclosure of an adjournment or postponement of an
annual meeting commence a new time period for the giving of a stockholders notice as described
above.
7
(c)
To be in proper form, a stockholders notice to the Secretary shall set forth as to each matter
the stockholder proposes to bring before the annual meeting, (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting; (ii) as to the stockholder giving notice and the beneficial owner,
if any, on whose behalf the proposal is being made, (A) the name and address of such person, (B)
the class, series and number of all shares of stock of the Corporation which are owned beneficially
or of record by such person, (C) the name of each nominee holder for, and the number of, shares
owned beneficially but not of record by each such person and (D) whether and the extent to which
any hedging or other transaction has been entered into by or on behalf of such stockholder with
respect to the stock of the Corporation and whether and the extent to which any other transaction,
agreement, arrangement or understanding (including any derivative or short positions, profit
interests, options, warrants, stock appreciation or similar rights or borrowing or lending shares
of stock) has been made by or on behalf of such stockholder, the effect or intent of any of the
foregoing being to manage the risk or benefit of share price changes in the stock price of the
Corporation for such person or to increase or decrease the voting power or pecuniary or economic
interest of such person with respect to stock of the Corporation; (iii) a description of all
agreements, arrangements or understandings (whether written or oral) between or among the
stockholder giving the notice and on whose behalf the proposal is being made and any other person
or persons in connection with the proposal and any material interest in such business, including
any anticipated benefit to such person or persons therefrom; (iv) a representation that the
stockholder giving notice intends to appear in person or by proxy at the annual meeting to bring
such business before the meeting; (v) a representation whether the stockholder or the beneficial
owner, if any, intends, or is part of a group that intends, to deliver a proxy statement or form of
proxy to holders of at least the percentage of the Corporations outstanding shares required to
approve or adopt the proposal or otherwise solicit proxies from stockholders in support of the
proposal; and (vi) any other information relating to the stockholder giving the notice and on whose
behalf the proposal is being made that would be required to be disclosed in a proxy statement or
other filing required to be made in connection with the solicitation of proxies with respect to
business brought at an annual meeting of stockholders pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the Exchange Act), and the rules and regulations promulgated
thereunder.
(d)
A stockholder providing notice of business proposed to be brought before an annual meeting
shall further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 9 shall be true and correct as of
the record date for the meeting, and such update and supplement shall be delivered to or mailed and
received by the Secretary at the principal executive offices of the Corporation not later than five
business days after the record date for the meeting.
(e)
Notwithstanding anything in the By-Laws to the contrary, no business shall be conducted at the
annual meeting except in accordance with the procedures set forth in this Section 9, provided,
however, that nothing in this Section 9 shall be deemed to preclude discussion by any stockholder
of any business properly brought before the annual meeting in accordance with said procedures.
(f)
The Chairman of an annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting in accordance with the provisions
of this Section 9, and if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
8
(g)
For purposes of ARTICLE II, Sections 9 and 10 of these By-Laws, public disclosure shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(h)
Nothing contained in this Section 9 shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporations proxy statement pursuant to Rule 14a-8 under
the Exchange Act (or any successor provision of law).
Section 10.
Nominations of Persons for Election to the Board of Directors
.
(a)
In addition to any other applicable requirements, only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors. Nominations of persons
for election to the Board of Directors of the Corporation may be made at any annual meeting of
stockholders, or at any special meeting of stockholders called for the purpose of electing
directors, (i) by or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (ii) by any nominating committee or person appointed by the Board of Directors or (iii)
by any stockholder of the Corporation (A) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 10 and on the record date for the determination of
stockholders entitled to vote at such annual or special meeting and (B) who complies with the
notice procedures set forth in this Section 10.
(b)
Such nominations, other than those made by or at the direction of the Board of Directors, shall
be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholders notice to the Secretary must be delivered to or mailed and received at the principal
executive offices of the Corporation (i) in the case of an annual meeting not less than 90 days nor
more than 120 days prior to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is called for a date
that is not within 25 days before or after such anniversary date, notice by the stockholder in
order to be timely must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first occurs; and (ii) in the case
of a special meeting of stockholders called for the purpose of electing directors, not later than
the close of business on the 10th day following the day on which notice of the date of the special
meeting was mailed or public disclosure of the date of the special meeting was made, whichever
occurs first. In no event shall the public disclosure of an adjournment or postponement of a
stockholder meeting commence a new time period for the giving of a stockholders notice as
described above.
(c)
To be in proper form, such stockholders notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or re-election as a director, (A) the name, age,
business address and residence address of such person, (B) the principal occupation or employment
of such person, (C) the class, series and number of all shares of stock of the Corporation which
are owned beneficially or of record by such person, (D) any other information relating to such
person that is required to be disclosed in solicitations for proxies for election of directors
pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder,
(E) the name of the nominee holder for, and number of, shares owned beneficially but
9
not of record by such person, and (F) whether and the extent to which any hedging or other
transaction has been entered into by or on behalf of such person with respect to the stock of the
Corporation and whether and the extent to which any other transaction, agreement, arrangement or
understanding (including any derivative or short positions, profit interests, options, warrants,
stock appreciation or similar rights or borrowing or lending shares of stock) has been made by or
on behalf of such person, the effect or intent of any of the foregoing being to manage the risk or
benefit of share price changes in the stock price of the Corporation for such person or to increase
or decrease the voting power or pecuniary or economic interest of such person with respect to stock
of the Corporation; (ii) as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination is being made, (A) the name and address of such person, (B) the
class, series and number of all shares of stock of the Corporation which are owned beneficially, or
of record, by such person, (C) the name of the nominee holder for, and the number of, shares owned
beneficially but not of record by such person, (D) whether and the extent to which any hedging or
other transaction has been entered into by or on behalf of such person with respect to the stock of
the Corporation and whether and the extent to which any other transaction, agreement, arrangement
or understanding (including any derivative or short positions, profit interests, options, warrants,
stock appreciation or similar rights or borrowing or lending shares of stock) has been made by or
on behalf of such person, the effect or intent of any of the foregoing being to manage the risk or
benefit of share price changes in the stock price of the Corporation for such person or to increase
or decrease the voting power or pecuniary or economic interest of such person with respect to stock
of the Corporation; (iii) a description of all agreements, arrangements or understandings (whether
written or oral) between or among such persons pursuant to which the nomination(s) are to be made
by the stockholder and any relationship between or among the stockholder giving notice and the
beneficial owner, if any, on the one hand, and each proposed nominee, on the other hand; (iv) a
representation that the stockholder giving notice intends to appear in person or by proxy at the
meeting to nominate the persons named in its notice; (v) a representation whether the stockholder
or the beneficial owner, if any, intends, or is part of a group that intends, to deliver a proxy
statement or form of proxy to holders of at least the percentage of the Corporations outstanding
shares required to elect the nominee or otherwise solicit proxies from stockholders in support of
the nomination; and (vi) any other information relating to such person that would be required to be
disclosed in a proxy statement or other filing required to be made in connection with the
solicitation of proxies for the election of directors pursuant to Section 14 of the Exchange Act,
and the rules and regulations promulgated thereunder. Such notice must be accompanied by (i) a
written consent of each proposed nominee to be named as a nominee and to serve as a director if
elected and (ii) a resignation in the form prescribed by Section 3(c) of ARTICLE III of these
By-Laws. The Corporation may require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine whether such proposed nominee meets the
criteria set forth in the Corporations Corporate Governance Guidelines to serve as a director of
the Corporation , including with regard to the independence of such proposed nominee.
(d)
A stockholder providing notice of any nomination proposed to be made at an annual or special
meeting shall further update and supplement such notice, if necessary, so that the information
provided or required to be provided in such notice pursuant to this Section 10 shall be true and
correct as of the record date for the annual or special meeting, and such update and supplement
shall be delivered to or mailed and received by the Secretary at the principal executive offices of
the Corporation not later than five business days after the record date of the meeting.
10
(e)
No person shall be eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 10.
(f)
These provisions shall not apply to the nomination of any persons entitled to be separately
elected as directors by holders of preferred stock.
(g)
The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the foregoing procedures, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
ARTICLE III
Directors
Section 1.
General Powers
. The property, affairs and business of the Corporation shall be managed
under the direction of its Board of Directors, which may exercise all of the powers of the
Corporation, except such as are by law or by the Certificate of Incorporation or by these By-Laws
expressly conferred upon or reserved to the stockholders.
Section 2.
Number and Term of Office; Removal
.
(a)
Number. The number of directors of the Corporation shall be fixed from time to time by these
By-Laws but in no event shall be less than three (3) or more than fifteen (15), with the exact
number to be fixed from time to time by resolution of the Board of Directors.
(b)
Term. Each nominee elected by the stockholders at the 2007 annual meeting of the stockholders
to serve as director shall hold office for a term commencing the date of the 2007 annual meeting,
or such later date as determined by the Board of Directors, and ending on the next annual meeting
of stockholders and until such directors successor is elected and qualified, or until such
directors earlier resignation or removal. At each annual meeting of stockholders subsequent to
the 2007 annual meeting of stockholders, each nominee elected by the stockholders to serve as
director shall hold office for a term commencing on the date of the annual meeting, or such later
date as shall be determined by the Board of Directors, and ending on the date of the next annual
meeting of stockholders and until such directors successor is elected and qualified, or until such
directors earlier resignation or removal.
(c)
Removal. A director may be removed from office, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors and, subject to such
removal, death, resignation, retirement or disqualification, shall hold office until such
directors term expires and until such directors successor shall be elected and qualified. In no
case shall a decrease in the number of directors shorten the term of any incumbent director.
The provisions of this Section 2 shall not apply to directors governed by Section 15 of this
ARTICLE III.
11
Section 3.
Election of Directors
.
(a)
Majority Voting. Except as provided in paragraph (b) below with respect to Contested
Elections, each nominee shall be elected a director by a Majority Vote with respect to that
nominees election at any meeting for the election of directors at which a quorum is present. For
purposes of these By-Laws, a Majority Vote means that the number of votes cast in favor of a
nominee must exceed the number of votes cast against that nominees election. Abstentions and
broker non-votes, if any, will not count as a vote cast with respect to that nominee.
(b)
Contested Elections. Directors shall be elected by a plurality of the votes cast in any
Contested Election. For purposes of these By-Laws, a Contested Election means an election of
directors (i) for which the Secretary of the Corporation has received a notice that a stockholder
has nominated a person for election to the Board of Directors in compliance with Section 10 of
ARTICLE II of these By-Laws, and (ii) such nomination has not been withdrawn at least five days
prior to the date the Corporation first mails the notice of meeting for such meeting to
stockholders.
(c)
Resignation and Replacement of Unsuccessful Incumbents.
(i) In order for any person to become a nominee of the Board of Directors for service
on the Board of Directors, such person must submit a resignation, contingent (A) on that
person not receiving the required vote for re-election, and (B) acceptance of that
resignation by the Board of Directors in accordance with policies and procedures adopted by
the Board of Directors for such purposes.
(ii) A resignation that becomes effective pursuant to subsection (c)(i) of this
Section 3 shall provide that it is irrevocable.
(iii) The Board of Directors, acting on the recommendation of the Committee on
Directors and Corporate Governance, shall within 90 days of receiving the certified results
of the stockholder vote pertaining to such election, determine whether to accept the
resignation of the unsuccessful incumbent. Absent a determination by the Board of Directors
that it is in the best interests of the Corporation for an unsuccessful incumbent to remain
as a director, no such person shall be elected by the Board to serve as a director, and the
Board shall accept that persons resignation.
(d)
Acceptance of a Directors Resignation. If the Board of Directors accepts the resignation of a
director who is an unsuccessful incumbent, or if in a non-Contested Election a nominee for director
who is not an incumbent director does not receive a Majority Vote, then the Board of Directors may
fill the resulting vacancy pursuant to the provisions of Section 4 of ARTICLE III of these By-Laws,
or may decrease the size of the Board of Directors pursuant to the provisions of Section 2 of
ARTICLE III of these By-Laws.
Section 4.
Vacancies
. Any vacancy occurring in the Board of Directors for any cause other than by
reason of an increase in the number of directors may be filled by a majority of the remaining
members of the Board of Directors, although such majority is less than a quorum, or by
12
the stockholders. Any vacancy occurring by reason of an increase in the number of directors may be
filled by action of a majority of the entire Board of Directors or by the stockholders. A director
elected by the Board of Directors to fill a vacancy shall be elected to hold office until the
expiration of the term for which he or she was elected and until his or her successor shall have
been elected and shall have qualified. A director elected by the stockholders to fill a vacancy
shall be elected to hold office until the expiration of the term for which he or she was elected
and until his or her successor shall have been elected and shall have qualified. The provisions of
this Section 4 shall not apply to directors governed by Section 15 of this ARTICLE III.
Section 5.
Resignations
. A director may resign at any time by giving written notice to the Board
of Directors or to the Secretary. Such resignation shall take effect when the resignation is
delivered unless the resignation specifies (a) a later effective date or (b) an effective date
determined upon the happening of an event or events (including but not limited to a failure to
receive the required vote in an election pursuant to Section 3 of ARTICLE III of these By-Laws, and
the Board of Directors acceptance of the resignation).
Section 6.
Annual Meetings
. The Board of Directors, as constituted following the vote of
stockholders at any meeting of the stockholders for the election of directors, may hold its first
meeting for the purpose of organization and the transaction of business, if a quorum be present,
immediately after such meeting and at the same place, and notice of such meeting need not be given.
Such first meeting may be held at any other time and place specified in a notice given as
hereinafter provided for special meetings of the Board of Directors or in a consent and waiver of
notice thereof signed by all the directors.
Section 7.
Regular Meetings
. Regular meetings of the Board of Directors may be held without notice
at such places and times as may be fixed from time to time by resolution of the Board.
Section 8.
Special Meetings; Notice
. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board or the President and shall be called by the Secretary upon
the written request of any three directors, and each special meeting shall be held at such place
and time as shall be specified in the notice thereof. At least twenty-four (24) hours notice of
each such special meeting shall be given to each director personally or sent to him or her
addressed to his or her residence or usual place of business by telephone, telegram or facsimile
transmission, or at least 120 hours notice of each such special meeting shall be given to each
director by letter sent to him or her addressed as aforesaid or on such shorter notice and by such
means, including electronic transmission, as the person or persons calling such meeting may deem
reasonably necessary or appropriate in light of the circumstances. Any notice by letter or telegram
shall be deemed to be given when deposited in the United States mail so addressed or when duly
deposited at an appropriate office for transmission by telegram, as the case may be. Such notice
need not state the business to be transacted at or the purpose or purposes of such special meeting.
No notice of any such special meeting of the Board of Directors need be given to any director who
attends in person or who, in writing executed and filed with the records of the meeting, either
before or after the holding thereof, waives such notice. No notice need be given of an adjourned
meeting of the Board of Directors.
13
Section 9.
Quorum and Manner of Acting
. A majority of the total number of directors, but in no
event less than two directors, shall constitute a quorum for the transaction of business at any
annual, regular or special meeting of the Board of Directors. Except as otherwise provided by law,
by the Certificate of Incorporation or by these By-Laws, the act of a majority of the directors
present at any meeting, at which a quorum is present, shall be the act of the Board of Directors.
In the absence of a quorum, a majority of the directors present may adjourn the meeting from time
to time until a quorum be had.
Section 10.
Consent in Writing
. Any action required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken without a meeting, if a written consent to
such action is signed or transmitted electronically by all members of the Board or of such
committee, as the case may be, and such written consent is filed with the minutes of proceedings of
the Board or such committee.
Section 11.
Committees.
(a)
Executive Committee
. The Board of Directors may, by resolution passed by a majority of a
quorum of the Board, appoint an Executive Committee of not less than three members, each of whom
shall be a director. The Executive Committee, to the extent permitted by law, shall have and may
exercise when the Board of Directors is not in session all powers of the Board in the management of
the business and affairs of the Corporation, including, without limitation, the power and authority
to declare a dividend or to authorize the issuance of stock, except such Committee shall not have
the power or authority (i) to approve, adopt, or recommend to stockholders any action or matter
required by the Delaware General Corporation Law to be submitted for stockholder approval; or (ii)
to adopt, amend, or repeal any By-Law of the Corporation.
(b)
Other Committees
. The Board of Directors may, by resolution passed by a majority of a quorum
of the Board, from time to time appoint such other committees as may be permitted by law. Such
other committees appointed by the Board of Directors shall have such powers and perform such duties
as may be prescribed by the resolution or resolutions creating such committee, but in no event
shall any such committee have the powers denied to the Executive Committee in these By-Laws.
(c)
Term
. The members of all committees of the Board of Directors shall serve a term coexistent
with that of the Board of Directors which shall have appointed such committees. The Board, subject
to the provisions of subsections (a) or (b) of this Section 11, may at any time increase or
decrease the number of members of a committee or terminate the existence of a committee; provided
that no committee shall consist of less than one member. The membership of a committee member shall
terminate on the date of his or her death or voluntary resignation, but the Board may at any time
for any reason remove any individual committee member and the Board may fill any committee vacancy
created by death, resignation, removal or increase in the number of members of the committee. The
Board of Directors may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee, and, in addition, in
the absence or disqualification of any member of a committee, the member or members thereof present
at any meeting and not disqualified from voting, whether or not he, she or they constitute a
quorum, may unanimously appoint another
14
member of the Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
(d)
Meetings
. Unless the Board of Directors shall otherwise provide, regular meetings of the
Executive Committee or any other committee appointed pursuant to this Section 11 shall be held at
such times and places as are determined by the Board of Directors, or by any such committee, and
when notice thereof has been given to each member of such committee, no further notice of such
regular meetings need be given thereafter; special meetings of any such committee may be held at
the principal office of the Corporation required to be maintained pursuant to Section 2 of ARTICLE
I hereof; or at any place which has been designated from time to time by resolution of such
committee or by written consent of all members thereof, and may be called by any director who is a
member of such committee, upon written notice to the members of such committee of the time and
place of such special meeting given in the manner provided for the giving of written notice to
members of the Board of Directors of the time and place of special meetings of the Board of
Directors. Notice of any special meeting of any committee may be waived in writing at any time
after the meeting and will be waived by any director by attendance thereat. Fifty percent (50%) of
the authorized number of members of any such committee shall constitute a quorum for the
transaction of business, and the act of a majority of those present at any meeting at which a
quorum is present shall be the act of such committee.
Section 12.
Telephone Meetings
. The Board of Directors or any committee thereof may participate in
a meeting by means of a conference telephone or similar communications equipment if all members of
the Board or of such committee, as the case may be, participating in the meeting can hear each
other at the same time. Participation in a meeting by these means shall constitute presence in
person at the meeting.
Section 13.
Compensation
. The directors may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors and/or stated compensation as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for attending committee
meetings.
Section 14.
Interested Directors
. No contract or transaction between the Corporation and one or
more of its directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of the Corporations directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his, her or their votes are counted for such purpose if (i) the
material facts as to his, her or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or committee, and the Board of
Directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to his, her or their relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
15
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
Section 15.
Directors Elected by Special Class or Series
. To the extent that any holders of any
class or series of stock other than Common Stock issued by the Corporation shall have the separate
right, voting as a class or series, to elect directors, the directors elected by such class or
series shall be deemed to constitute an additional class of directors and shall have a term of
office for one year or such other period as may be designated by the provisions of such class or
series providing such separate voting right to the holders of such class or series of stock, and
any such class of directors shall be in addition to directors serving pursuant to Section 2 of this
ARTICLE III. Any directors so elected shall be subject to removal in such manner as may be provided
by law or by the Certificate of Incorporation of this Corporation. The provisions of Sections 2, 3
and 4 of this ARTICLE III do not apply to directors governed by this Section 15.
ARTICLE IV
Officers
Section 1.
Designation of Officers
. The officers of the Corporation, who shall be chosen by the
Board of Directors at its first meeting after each annual meeting of stockholders, shall be a
Chairman of the Board, a President, one or more Vice Presidents, a Treasurer, a Secretary and a
Controller. The Board of Directors from time to time may choose such other officers as it shall
deem appropriate. Any one person may hold any number of offices of the Corporation at any one time
unless specifically prohibited therefrom by law. The Chairman of the Board and the President shall
be chosen from among the directors; the other officers need not be directors.
Section 2.
Term of Office; Resignation; Removal
. The term of office of each officer shall be until
the first meeting of the Board of Directors following the next annual meeting of stockholders and
until his or her successor is elected and shall have qualified, or until his or her death,
resignation or removal, whichever is sooner. Any officer may resign at any time by giving written
notice to the Board of Directors or to the Secretary. Such resignation shall take effect at the
time specified therein and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. Any officer may be removed at any time either with or
without cause by the Board of Directors.
Section 3.
Vacancies
. A vacancy in any office because of death, resignation, removal,
disqualification or any other cause, may be filled for the unexpired portion of the term by the
Board of Directors.
Section 4.
Authority of Officers
. Subject to the power of the Board of Directors in its discretion
to change and redefine the duties of the officers of the Corporation by resolution in such manner
as it may from time to time determine, the duties of the officers of the Corporation shall be as
follows:
16
(a)
Chairman of the Board
. The Chairman of the Board shall preside at meetings of the
stockholders and the Board of Directors. Subject to the direction of the Board of Directors, he or
she shall generally manage the affairs of the Board and perform such other duties as are assigned
by the Board.
(b)
President
. The President shall be the Chief Executive Officer of the Corporation, and shall
execute all the powers and perform all the duties usual to such office. Subject to the direction of
the Board of Directors, he or she shall have the responsibility for the general management of the
affairs of the Corporation. The President shall perform such other duties as may be prescribed or
assigned to him or her from time to time by the Board of Directors.
(c)
Other Officers
. The other officers of the Corporation shall have such powers and shall perform
such duties as generally pertain to their respective offices, as well as such powers and duties as
the Board of Directors, the Executive Committee or the Chief Executive Officer may prescribe.
Section 5.
Divisional Titles
. Any one of the Chief Executive Officer, President, or Vice President Human
Resources and Administration (each one an Appointing Person), may from time to time confer upon
any employee of a division of the Corporation the title of President, Vice President, Treasurer or
Secretary of such division or any other divisional title or titles deemed appropriate. Any such
titles so conferred may be discontinued and withdrawn at any time by any one Appointing Person. Any
employee of a division designated by such a divisional title shall have the powers and duties with
respect to such division as shall be prescribed by the Appointing Person. The conferring,
withdrawal or discontinuance of divisional titles shall be in writing and shall be filed with the
Secretary of the Corporation.
Section 6.
Salaries
. The salaries and other compensation of the principal officers of the Corporation shall be
fixed from time to time by the Board of Directors.
ARTICLE V
Execution of Corporate Instruments
And Voting of Securities Owned By the Corporation
Section 1.
Execution of Instruments
. The Board of Directors may in its discretion determine the method and
designate the signatory officer or officers or other person or persons, to execute any corporate
instrument or document, or to sign the corporate name without limitation, except where otherwise
provided by law, and such execution or signature shall be binding upon the Corporation. All checks
and drafts drawn on banks or other depositories on funds to the credit of the Corporation or in
special accounts of the Corporation, shall be signed by such person or persons as the Treasurer or
such other person designated by the Board of Directors for that purpose shall authorize so to do.
Section 2.
Voting of Securities Owned by the Corporation
. All stock and other securities of other corporations
and business entities owned or held by the Corporation for itself, or for other parties in any
capacity, shall be voted, and all proxies with respect thereto shall be executed, by the person
authorized to do so by resolution of the Board of Directors.
17
ARTICLE VI
Shares of Stock and Other Securities
Section 1.
Form and Execution of Certificates
. Certificates for the shares of stock of the Corporation shall
be in such form as is consistent with the Certificate of Incorporation and applicable law. Every
holder of stock in the Corporation shall be entitled to have a certificate signed by, or in the
name of the Corporation by, the Chairman of the Board (if there be such an officer appointed), or
by the President or any Vice President and by the Treasurer or Assistant Treasurer or the Secretary
or Assistant Secretary, certifying the number of shares owned by such stockholder in the
Corporation. Any or all of the signatures on the certificate may be a facsimile. In case any
officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued with the same effect as if he or she were such officer,
transfer agent, or registrar at the date of issue. If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the Delaware General Corporation Law, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate which the Corporation
shall issue to represent such class or series of stock, a statement that the Corporation will
furnish without charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
Section 2.
Lost Certificates
. The Board of Directors may direct a new certificate or certificates to be issued
in place of any certificate or certificates theretofore issued by the Corporation alleged to have
been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost or destroyed certificate or certificates, or such
owners legal representative, to indemnify the Corporation in such manner as it shall require
and/or to give the Corporation a surety bond in such form and amount as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
Section 3.
Transfers
. Transfers of record of shares of stock of the Corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and upon the surrender of a
certificate or certificates for a like number of shares, properly endorsed.
Section 4.
Fixing Record Dates
. In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of
18
any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not
be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior
to any other action. If no record date is fixed: (1) the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held; (2) the record date for
determining stockholders entitled to express consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed; (3) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 5.
Registered Stockholders
. The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and to vote as such
owner, and shall not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
Section 6.
Regulations
. The Board of Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of the stock and other
securities of the Corporation, and may appoint transfer agents and registrars of any class of stock
or other securities of the Corporation.
Section 7.
Other Securities of the Corporation
. All bonds, debentures and other corporate securities of the
Corporation, other than stock certificates, may be signed by the Chairman of the Board (if there be
such an officer appointed), or the President or any Vice President or such other person as may be
authorized by the Board of Directors and the corporate seal impressed thereon or a facsimile of
such seal imprinted thereon and attested by the signature of the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer; provided, however, that where any such bond,
debenture or other corporate security shall be authenticated by the manual signature of a trustee
under an indenture pursuant to which such bond, debenture or other corporate security shall be
issued, the signature of the persons signing and attesting the corporate seal on such bond,
debenture or other corporate security may be the imprinted facsimile of the signatures of such
persons. Interest coupons appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an Assistant Treasurer
of the Corporation, or such other person as may be authorized by the Board of Directors, or bear
imprinted thereon the facsimile signature of such person. In case any officer who shall have signed
or attested any bond, debenture or other corporate security or whose facsimile signature shall
appear thereon shall have ceased to be such officer before the bond, debenture or other corporate
security so signed or attested shall have been delivered, such bond, debenture or other corporate
security nevertheless may be adopted by the Corporation and issued and delivered as though the
person who signed the same or whose facsimile signature shall have been used thereon had not ceased
to be such officer of the Corporation.
19
ARTICLE VII
Corporate Seal
The corporate seal shall consist of a die bearing the name of the Corporation and the state and
date of its incorporation. Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
Indemnification of Officers, Directors, Employees and Agents
Section 1.
Power to Indemnify in Actions, Suits or Proceedings Other Than Those by or in the Right of the
Corporation
. Subject to Section 3 of this ARTICLE VIII, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Corporation) by reason of the fact that he or she is or was a
director or officer of the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director or officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere
or its
equivalent, shall not, of itself, create a presumption that the person did not act in good faith
and in a manner which he or she reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful. The right to indemnification conferred in this
ARTICLE VIII shall be a contract right.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation
. Subject
to Section 3 of this ARTICLE VIII, the Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director or officer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in view
20
of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such other court shall deem proper.
Section 3.
Authorization of Indemnification
. Any indemnification under this ARTICLE VIII (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in Section 1 or Section 2 of
this ARTICLE VIII, as the case may be. Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders. To the extent, however, that a director or officer of the Corporation
has been successful on the merits or otherwise in defense of any action, suit or proceeding
described above, or in defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him or
her in connection therewith, without the necessity of authorization in the specific case.
Section 4.
Good Faith Defined
. For purposes of any determination under Section 3 of this ARTICLE VIII, a
person shall be deemed to have acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, or, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe his or her conduct was unlawful,
if his or her action is based on the records or books of account of the Corporation or another
enterprise, or on information supplied to him or her by the officers of the Corporation or another
enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or
another enterprise or on information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The term another
enterprise as used in this Section 4 shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such person is or was serving at
the request of the Corporation as a director, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct set forth in Sections 1 or 2 of
this ARTICLE VIII, as the case may be.
Section 5.
Indemnification by a Court
. Notwithstanding any contrary determination in the specific case under
Section 3 of this ARTICLE VIII, and notwithstanding the absence of any determination thereunder,
any director or officer may apply to any court of competent jurisdiction in the State of Delaware
for indemnification to the extent otherwise permissible under Sections 1 and 2 of this ARTICLE
VIII. The basis of such indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances because he or she has met
the applicable standards of conduct set forth in Sections 1 or 2 of this ARTICLE VIII, as the case
may be. Neither a contrary determination in the specific case under Section 3 of this ARTICLE VIII
nor the absence of any determination thereunder shall be a defense to such application or create a
presumption that the director or officer seeking indemnification has not met any applicable
standard of conduct. Notice of any application for indemnification pursuant to this Section 5 shall
be given to the Corporation promptly upon the filing of such application. If
21
successful, in whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
Section 6.
Expenses Payable in Advance
. Expenses incurred by a director or officer in defending or
investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately
be determined that he or she is not entitled to be indemnified by the Corporation as authorized in
this ARTICLE VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses
. The indemnification and advancement
of expenses provided by or granted pursuant to this ARTICLE VIII shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of expenses may be entitled
under any By-Law, agreement, contract, vote of stockholders or disinterested directors or pursuant
to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as
to action in his or her official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of the persons specified in
Sections 1 and 2 of this ARTICLE VIII shall be made to the fullest extent permitted by law. The
provisions of this ARTICLE VIII shall not be deemed to preclude the indemnification of any person
who is not specified in Sections 1 or 2 of this ARTICLE VIII but whom the Corporation has the power
or obligation to indemnify under the provisions of the General Corporation Law of the State of
Delaware, or otherwise.
Section 8.
Insurance
. The Corporation may purchase and maintain insurance on behalf of any person who is or
was a director or officer of the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
any liability asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would have the power or
the obligation to indemnify him or her against such liability under the provisions of this ARTICLE
VIII.
Section 9.
Certain Definitions
. For purposes of this ARTICLE VIII, references to the Corporation shall
include, in addition to the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its directors or officers,
so that any person who is or was a director or officer of such constituent corporation, or is or
was a director or officer of such constituent corporation serving at the request of such
constituent corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the
same position under the provisions of this ARTICLE VIII with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this ARTICLE VIII, references to fines shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and references to
serving at the request of the Corporation shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit plan, its participants or beneficiaries;
and a
22
person who acted in good faith and in a manner he or she reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner not opposed to the best interests of the Corporation as referred to in this ARTICLE
VIII.
Section 10.
Survival of Indemnification and Advancement of Expenses
. The indemnification and advancement of
expenses provided by, or granted pursuant to, this ARTICLE VIII shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 11.
Limitation on Indemnification
. Notwithstanding anything contained in this ARTICLE VIII to the
contrary, except for proceedings to enforce rights to indemnification (which shall be governed by
Section 5 hereof), the Corporation shall not be obligated to indemnify any director or officer in
connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or
part thereof) was authorized or consented to by the Board of Directors of the Corporation.
Section 12.
Indemnification of Employees and Agents
. The Corporation may, to the extent authorized from time
to time by the Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred in this ARTICLE VIII
to directors and officers of the Corporation.
Section 13.
Effect of Amendment
. Any amendment, repeal or modification of this ARTICLE VIII shall not (a)
adversely affect any right or protection of any director or officer existing at the time of such
amendment, repeal or modification, or (b) apply to the indemnification of any such person for
liability, expense, or loss stemming from actions or omissions occurring prior to such amendment,
repeal, or modification.
Section 14.
Authority to Enter into Indemnification Agreements
. The Corporation may enter into indemnification
agreements with the directors and officers of the Corporation.
ARTICLE IX
Notices
Whenever, under any provisions of these By-Laws, notice is required to be given to any stockholder,
the same shall be given in writing, timely and duly deposited in the United States Mail, postage
prepaid, and addressed to such stockholders last known post office address as shown by the stock
record of the Corporation or its transfer agent. Any notice required to be given to any director
may be given by any of the methods stated in Section 8 of ARTICLE III hereof, except that such
notice other than one which is delivered personally, shall be sent to such address or (in the case
of facsimile telecommunication) facsimile telephone number as such director shall have disclosed in
writing to the Secretary of the Corporation, or, in the absence of such filing, to the last known
post office address of such director. If no address of a stockholder or director be known, such
notice may be sent to the office of the Corporation required to be maintained pursuant to Section 2
of ARTICLE I hereof. An affidavit of mailing, executed by a duly authorized and competent employee
of the Corporation or its transfer agent appointed with respect to the class of
23
stock affected, specifying the name and address or the names and addresses of the stockholder or
stockholders, director or directors, to whom any such notice or notices was or were given, and the
time and method of giving the same, shall be conclusive evidence of the statements therein
contained. All notices given by mail, as above provided, shall be deemed to have been given as at
the time of mailing and all notices given by telegram or other means of electronic transmission
shall be deemed to have been given as at the sending time recorded by the telegraph company or
other electronic transmission equipment operator transmitting the same. It shall not be necessary
that the same method of giving be employed in respect of all directors, but one permissible method
may be employed in respect of any one or more, and any other permissible method or methods may be
employed in respect of any other or others. The period or limitation of time within which any
stockholder may exercise any option or right, or enjoy any privilege or benefit, or be required to
act, or within which any director may exercise any power or right, or enjoy any privilege, pursuant
to any notice sent such stockholder or such director in the manner above provided, shall not be
affected or extended in any manner by the failure of such a stockholder or such director to receive
such notice. Whenever any notice is required to be given under the provisions of this statute or of
the Certificate of Incorporation, or of these By-Laws, a waiver thereof in writing signed by the
person or persons entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. Whenever notice is required to be given, under any provision of law
or of the Certificate of Incorporation or By-Laws of the Corporation, to any person with whom
communication is unlawful, the giving of such notice to such person shall not be required and there
shall be no duty to apply to any governmental authority or agency for a license or permit to give
such notice to such person. Any action or meeting which shall be taken or held without notice to
any such person with whom communication is unlawful shall have the same force and effect as if such
notice had been duly given. In the event that the action taken by the Corporation is such as to
require the filing of a certificate under any provision of the Delaware General Corporation Law,
the certificate shall state, if such is the fact and if notice is required, that notice was given
to all persons entitled to receive notice except such persons with whom communication is unlawful.
ARTICLE X
Amendments
The Board of Directors is expressly authorized to adopt, alter and repeal the By-Laws of the
Corporation in whole or in part at any regular or special meeting of the Board of Directors, by
vote of a majority of the entire Board of Directors. The By-Laws may also be adopted, altered or
repealed in whole or in part at any annual or special meeting of the stockholders by the
affirmative vote of a majority of the shares of the Corporation outstanding and entitled to vote
thereon.
24
Certificate of Secretary
The undersigned, Associate General Counsel and Secretary of McKesson Corporation, a Delaware
corporation, hereby certifies that the foregoing is a full, true and correct copy of the By-Laws of
said Corporation, with all amendments to date of this Certificate.
WITNESS the signature of the undersigned and the seal of the Corporation this 27
th
day
of July, 2011.
|
|
|
|
|
|
|
|
|
/s/ Willie C. Bogan
|
|
|
Willie C. Bogan
|
|
|
Associate General Counsel and Secretary
|
|
|
25