INDEMNIFICATION AGREEMENT As Amended and Restated Effective May 28, 2003
EXHIBIT 10.27
INDEMNIFICATION AGREEMENT
As Amended and Restated Effective May 28, 2003
As Amended and Restated Effective May 28, 2003
AGREEMENT, effective as of between McKesson Corporation, a Delaware
corporation (the “Company”), and (the “Indemnitee”).
WHEREAS, it is essential to the Company to retain and attract as directors and officers the
most capable persons available.
WHEREAS, Indemnitee is a director/officer of the Company.
WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other
claims being asserted against directors of public companies in today’s environment;
WHEREAS, the Certificate of Incorporation and the By-laws of the Company require the Company
to indemnify and advance expenses to its directors to the fullest extent permitted by law and the
Indemnitee has been serving and continues to serve as a director or officer of the Company in part
in reliance on such Certificate of Incorporation and By-laws;
WHEREAS, in recognition of Indemnitee’s needs for substantial protection against personal
liability in order to enhance Indemnitee’s continued service to the Company in an effective manner
and Indemnitee’s reliance on the aforesaid Certificate of Incorporation and By-laws, and in part to
provide Indemnitee with specific contractual assurance that the protection promised by such
Certificate of Incorporation and By-laws will be available to Indemnitee (regardless of, among
other things, any amendment to or revocation of such Certificate of Incorporation and By-laws or
any change in the composition of the Board of Directors or acquisition transaction relating to the
Company), and in order to induce Indemnitee to continue to provide services to the Company as a
director or officer thereof, the Company wishes to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to the fullest extent (whether
partial or complete) permitted by law and as set forth in this Agreement, and, to the extent
insurance is maintained, for the continued coverage of Indemnitee under the Company’s directors’
and officers’ liability insurance policies.
NOW, THEREFORE, in consideration of the premises and of Indemnitee continuing to serve the
Company directly or, at its request, with another Enterprise, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Certain Definitions.
(a) Change in Control: shall be deemed to have occurred if (i) any “person” (as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other
than a trustee or other fiduciary holding securities under an employee benefit plan of the
Company or a corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company, is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of
securities of the Company representing 20% or more of the total voting power represented by the
Company’s then outstanding Voting
Securities, or (ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and any new director
whose election by the Board of Directors or nomination for election by the Company’s stockholders
was approved by a vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the
stockholders of the Company approve a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the Voting Securities of
the Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of
the total voting power represented by the Voting Securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of transactions) of all or
substantially all of the Company’s assets.
(b) Expense: includes attorneys’ fees and all other costs, expenses and obligations paid or
incurred in connection with investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or participate in any Proceeding
relating to any Indemnifiable Event.
(c) Indemnifiable Event: any event or occurrence that takes place either prior to or after
the execution of this Agreement, related to the fact that Indemnitee is or was a director or an
officer of the Company, or while a director or officer is or was serving at the request of the
Company as a director, officer, employee, trustee, agent or fiduciary of another Enterprise, or
by reason of anything done or not done by Indemnitee in any such capacity.
(d) Potential Change in Control: shall be deemed to have occurred if (i) the Company enters
into an agreement or arrangement, the consummation of which would result in the occurrence of
Change in Control; (ii) any person (including the Company) publicly announces an intention to
take or to consider taking actions which if consummated would constitute Change in Control; (iii)
any person, other than a trustee or other fiduciary holding securities under an employee benefit
plan of the Company acting in such capacity or a corporation owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as their ownership of stock
of the Company, who is or becomes the beneficial owner, directly or indirectly, of securities of
the Company representing 10% or more of the combined voting power of the Company’s then
outstanding Voting Securities, increases his beneficial ownership of such securities by 5% or
more over the percentage so owned by such person on the date hereof; or (iv) the Board adopts a
resolution to the effect that, for purposes of this Agreement, a Potential Change in Control has
occurred.
(e) Proceeding: any threatened, pending or completed action, suit, arbitration, mediation or
proceeding, or any inquiry, hearing or investigation, whether instituted by the Company or any
other party, that Indemnitee in good faith believes might
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lead to the institution of any such action, suit or proceeding, whether civil, criminal,
administrative, investigative or other.
(f) Enterprise: the Company and any corporation, partnership, limited liability company,
joint venture, employee benefit plan, trust or other enterprise of which the Indemnitee is or was
serving at the request of the Company as director, officer, employee, trustee, agent or
fiduciary.
(g) Reviewing Party: any appropriate person or body consisting of a member or members of
the Company’s Board of Directors or any other person or body appointed by the Board (including
the special, independent counsel referred to in Section 3) who is not a party to the particular
Proceeding with respect to which Indemnitee is seeking indemnification.
(h) Voting Securities: any securities of the Company which vote generally in the election
of directors.
2. Agreement to Indemnify.
(a) In the event Indemnitee was, is or becomes a party to or witness or other participant
in, or is threatened to be made a party to or witness or other participant in, a Proceeding by
reason of (or arising in part out of ) an Indemnifiable Event, the Company shall indemnify
Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no
later than thirty days after written demand is presented to the Company, against any and all
Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or in respect of such Expenses,
judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal,
state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement (including the creation of the Trust).
Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5,
prior to a Change in Control Indemnitee shall not be entitled to indemnification pursuant to this
Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any
director or officer of the Company unless the Company has joined in or the Board of Directors has
consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall
advance (within ten business days of such request) any and all Expenses to Indemnitee (an
“Expense Advance”).
(b) The Company’s obligations under Section 2(a) are subject to the following:
(i) Expense Advances. With respect to Expense Advances made pursuant to Section 2(a) and
prior to any final judicial determination that the Indemnitee does not have a right to
indemnification.
(I) the obligations of the Company under Section 2(a) shall not be subject to the absence of a
determination by the Reviewing Party (in a written opinion,
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in any case in which the independent counsel referred to in Section 3 hereof is involved) that
Indemnitee would not he permitted to be indemnified under applicable law, and
(II) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall
be subject to the condition that, if, when and to the extent that the Reviewing Party determines
that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall
be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter
commences legal proceedings in a court of competent jurisdiction to secure a determination that
Indemnitee should be indemnified under applicable law, any determination made by the Reviewing
Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be
binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until
a final judicial determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or lapsed). Indemnitee shall continue to be entitled to receive
Expense Advances pursuant to Section 2(b)(i)(I) above until a final judicial determination that the
Indemnitee would not be permitted to be indemnified under applicable law. Indemnitee’s obligation
to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged
thereon. If there has not been a Change in Control, the Reviewing Party shall be selected by the
Board of Directors, and if there has been such a Change in Control (other than a Change in Control
which has been approved by a majority of the Company’s Board of Directors who were directors
immediately prior to such Change in Control), the Reviewing Party shall be the independent counsel
referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if
the Reviewing Party determines that Indemnitee substantively would not be permitted to be
indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence
litigation in any court in the States of California or Delaware having subject matter jurisdiction
thereof and in which venue is proper seeking an initial determination by the court or challenging
any such determination by the Reviewing Party or any aspect thereof, including the legal or factual
bases therefor, and the Company hereby consents to service of process and to appear in any such
proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on
the Company and Indemnitee.
(III) Notwithstanding the foregoing, if a court of competent jurisdiction makes a final
determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that the
Indemnitee is not entitled to an Expense Advance prior to the Company making such Expense Advance,
then the Company shall not be obligated to make any Expense Advance to the Indemnitee.
(ii) Payments Other Than Expense Advances. With respect to the obligations of the Company to
indemnify the Indemnitee pursuant to Section 2(a) for costs and expenses other than Expense
Advances, the obligations of the Company under Section 2(a) shall be subject to the condition that
the Reviewing Party shall not have determined (in a written opinion, in any case in which the
independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be
permitted to be indemnified under applicable law.
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(iii) In the event that a determination shall have been made by the Reviewing Party that
Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this
Section 2(b) shall be conducted in all respects as a de novo trial on the merits and Indemnitee
shall not be prejudiced by reason of that adverse determination. In any judicial proceeding
commenced pursuant to this Section 2(b), the Company shall have the burden of proving that
Indemnitee is not entitled to indemnification or Expense Advances, as the case may be.
3. Change in Control. The Company agrees that if there is a Change in Control of the Company
(other than a Change in Control which has been approved by a majority of the Company’s Board of
Directors who were directors immediately prior to such Change in Control) then with respect to all
matters thereafter arising concerning the rights of Indemnitee to indemnity payments and Expense
Advances under this Agreement or any other agreement or under applicable law or the Company’s
Certificate of Incorporation or By-Laws now or hereafter in effect relating to indemnification for
Indemnifiable Events, the Company shall seek legal advice only from special, independent counsel
selected by Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld), and who has not otherwise performed services for the Company or the Indemnitee (other
than in connection with such matters) within the last five years. Such independent counsel shall
not include any person who, under the applicable standards of professional conduct then prevailing,
would have a conflict of interest in representing either the Company or Indemnitee in an action to
determine Indemnitee’s rights under this Agreement. Such counsel, among other things, shall render
its written opinion to the Company and Indemnitee as to whether and to what extent the Indemnitee
would be permitted to be indemnified under applicable law. The Company agrees to pay the
reasonable fees of the special, independent counsel referred to above and to indemnify fully such
counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or the engagement of special, independent counsel
pursuant hereto.
4. Establishment of Trust. In the event of a Potential Change in Control, the Company shall,
upon written request by Indemnitee, create a Trust for the benefit of the Indemnitee and from time
to time upon written request of Indemnitee shall fund such Trust in an amount sufficient to satisfy
any and all Expenses reasonably anticipated at the time of each such request to be incurred in
connection with investigating, preparing for and defending any Proceeding relating to an
Indemnifiable Event, and any and all judgments, fines, penalties and settlement amounts of any and
all Proceedings relating to an Indemnifiable Event from time to time actually paid or claimed,
reasonably anticipated or proposed to be paid. The amount or amounts to be deposited in the Trust
pursuant to the foregoing funding obligation shall be determined by the Reviewing Party, in any
case in which the special, independent counsel referred to above is involved. The terms of the
Trust shall provide that upon a Change in Control (i) the Trust shall not be revoked or the
principal thereof invaded, without the written consent of the Indemnitee, (ii) the Trustee shall
advance, within ten business days of a request by the Indemnitee, any and all Expenses to the
Indemnitee (and the Indemnitee hereby agrees to reimburse the Trust under the circumstances under
which the Indemnitee would be required to reimburse the Company under Section 2(b) of this
Agreement), (iii) the Trust shall continue to be funded by the Company in accordance with the
funding obligation set forth above, (iv) the Trustee shall
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promptly pay to the Indemnitee all amounts for which the Indemnitee shall be entitled to
indemnification pursuant to this Agreement or otherwise, and (v) all unexpended funds in such Trust
shall revert to the Company upon a final determination by the Reviewing Party or a court of
competent jurisdiction, as the case may be, that the Indemnitee has been fully indemnified under
the terms of this Agreement. The Trustee shall be chosen by the Indemnitee. Nothing in this
Section 4 shall relieve the Company of any of its obligations under this Agreement. All income
earned on the assets held in the Trust shall be reported as income by the Company for federal,
state, local and foreign tax purposes.
5. Indemnification for Expenses Incurred in Enforcing this Agreement. The Company shall
indemnify Indemnitee against any and all expenses (including attorneys’ fees), and, if requested by
Indemnitee, shall (within ten business days of such request) advance such expenses to Indemnitee,
which are incurred by Indemnitee in connection with any claim asserted against or action brought by
Indemnitee for (i) indemnification or advance payment of Expenses by the Company under this
Agreement (including any legal proceedings initiated by Indemnitee under Section 2(b)) or any other
agreement or under applicable law or the Company’s Certificate of Incorporation or By-laws now or
hereafter in effect relating to indemnification for Indemnifiable Events and/or (ii) recovery under
any directors’ and officers’ liability insurance policies maintained by the Company, regardless of
whether Indemnitee ultimately is determined to be entitled to such indemnification, advance expense
payment or insurance recovery, as the case may be.
6. Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses, judgments, fines, penalties
and amounts paid in settlement of a Proceeding but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the
extent that the Indemnitee has been successful on the merits or otherwise in defense of any or all
Proceedings relating in whole or in part to an Indemnifiable Event or in defense of any issue or
matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all
Expenses incurred in connection therewith.
7. Defense to Indemnification, Burden of Proof and Presumptions.
(a) It shall be a defense to any action brought by the Indemnitee against the Company to
enforce this Agreement (other than an action brought to enforce a claim for expenses incurred in
defending a Proceeding in advance of its final disposition where the required undertaking has been
tendered to the Company) that the Indemnitee has not met the standards of conduct that make it
permissible under the Delaware General Corporation Law for the Company to indemnify the Indemnitee
for the amount claimed. In connection with any determination by the Reviewing Party or otherwise
as to whether the Indemnitee is entitled to be indemnified hereunder, it shall be presumed that the
Indemnitee is entitled to indemnification, and the Company and anyone else seeking to overcome this
presumption shall have the burden of proof and the burden of persuasion, by clear and convincing
evidence. Neither the failure of the Company (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the commencement
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of such action by the Indemnitee that indemnification is proper under the circumstances because he
or she has met the applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Company (including its Board of Directors, independent
legal counsel, or its stockholders) that the Indemnitee had not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met
the applicable standard of conduct. For purposes of this Agreement, the termination of any claim,
action, suit or proceeding, by judgment, order, settlement (whether with or without court approval)
or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption
that Indemnitee did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by applicable law.
(b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based
on the records or books of account of the Enterprise, including financial statements, or on
information supplied to Indemnitee by the officers of the Enterprise in the course of their
duties, or on the advice of legal counsel for the Enterprise or on information or records given
or reports made to the Enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Enterprise. In addition, the
knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the
Enterprise shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement. Whether or not the foregoing provisions of this Section 7
are satisfied, it shall in any event by presumed that Indemnitee has at all times acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Company. The Company and anyone else seeking to overcome this presumption shall have the burden
of proof and the burden of persuasion, by clear and convincing evidence.
(c) Indemnitee shall cooperate with the Reviewing Party making a determination with respect
to the Indemnitee’s entitlement to indemnification hereunder, including providing to such person,
persons or entity upon reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably available to the
Indemnitee and reasonably necessary to such determination. The Reviewing Party shall act
reasonably and in good faith in making a determination under this Agreement of Indemnitee’s
entitlement to indemnification. Any costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making
such determination shall be borne by the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to
hold the Indemnitee harmless therefrom.
(d) The Company acknowledges that a settlement or other disposition short of final judgment
may be successful if it permits a party to avoid expense, delay, distraction, disruption and
uncertainty. In the event that any Proceeding to which Indemnitee is a party is resolved in any
manner other than by adverse judgment against Indemnitee (including, without limitation,
settlement of such Proceeding with or without payment of money or other consideration) it shall
be presumed that Indemnitee has been successful on the merits or otherwise in such Proceeding.
The Company and anyone else
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seeking to overcome this presumption shall have the burden of proof and the burden or
persuasion, by clear and convincing evidence.
(e) The Company shall be precluded from asserting in any judicial proceeding to enforce this
Agreement that the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such proceeding that the Company is bound by all the
provisions of this Agreement.
8. Non-exclusivity. The rights of the Indemnitee hereunder shall be in addition to any other
rights Indemnitee may have under the Company’s Certificate of Incorporation or By-laws or the
Delaware General Corporation Law or otherwise. To the extent that a change in the Delaware General
Corporation Law (whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Company’s Certificate of Incorporation and
By-laws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such change.
9. Liability Insurance. To the extent the Company maintains an insurance policy or policies
providing directors’ and officers’ liability insurance, Indemnitee shall be covered by such policy
or policies, in accordance with its or their terms, to the maximum extent of the coverage available
for any Company director of officer.
10. Period of Limitations. No legal action shall be brought and no cause of action shall be
asserted by or on behalf of the Company or any affiliate of the Company against Indemnitee,
Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of
two years from the date of accrual of such cause of action, or such longer period as may be
required by state law under the circumstances, and any claim or cause of action of the Company or
its affiliate shall be extinguished and deemed released unless asserted by the timely filing of a
legal action within such period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action such shorter period shall govern.
11. Amendment of this Agreement. No supplement, modification or amendment of this Agreement
shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
12. Subrogation. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute all papers required and shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the Company effectively to bring suit
to enforce such rights.
13. No Duplication of Payments. The Company shall not be liable under this Agreement to make
any payment in connection with any claim made against Indemnitee to
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the extent Indemnitee has otherwise actually received payment (under any insurance policy, By-law
or otherwise) of the amounts otherwise indemnifiable hereunder.
14. Settlement of Claims. The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim effected without the Company’s
written consent. The Company shall not settle any action or claim in any manner which would impose
any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Company
nor the Indemnitee will unreasonably withhold their consent to any proposed settlement. The
Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any
judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to
participate in the defense of such action.
15. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns, including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Company, spouses, heirs, and personal and legal representatives.
The Company shall require and cause any successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of the business
and/or assets of the Company, by written agreement in form and substance satisfactory to the
Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no such succession had taken place.
This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as a
director or officer of the Company or of any other enterprise at the Company’s request.
16. Severability. The provisions of this Agreement shall be severable in the event that any
of the provisions hereof (including any provision within a single section, paragraph or sentence)
is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and
the remaining provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement (including, with
limitation, each portion of this Agreement containing any provision held to be invalid, void or
otherwise unenforceable, that is not itself invalid, void or unenforceable) shall be construed so
as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
17. Prior Agreements. This Agreement supersedes any and all prior agreements, arrangements
and understandings between the parties relating to the matters provided herein. This Agreement
shall be effective as of the date set forth on the first page hereof and shall apply to acts or
omissions of Indemnitee which occurred prior to such date if Indemnitee was an officer, director,
employee or agent of the Company or of another Enterprise.
18. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made and to be performed
in such State without giving effect to the principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of
the day of , .
| McKESSON CORPORATION |
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| By: | ||||
| Indemnitee | ||||
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