Form 8-K - Current report

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported):

August 13, 2024

Cencora, Inc.
__________________________________________
(Exact name of registrant as specified in its charter)

Delaware	1-16671	23-3079390
_____________________ (State or other jurisdiction	_____________ (Commission	______________ (I.R.S. Employer
of incorporation)	File Number)	Identification No.)

1 West First Avenue Conshohocken, PA		19428-1800
_________________________________ (Address of principal executive offices)		___________ (Zip Code)

Registrant’s telephone number, including area code:

(610) 727-7000

__________________________________________

Former name or former address, if changed since last report

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of exchange on which registered
Common stock	COR	New York Stock Exchange (NYSE)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Item 1.01. Entry Into a Material Definitive Agreement.

Indemnification Agreement

On August 13, 2024, the Board of Directors (the “Board”) of Cencora, Inc. (the “Company”) approved a form of Indemnification Agreement (the “Indemnification Agreement”) to be entered into with each of the members of its Board and each individual designated as an “executive officer” (each, an “Indemnitee”) pursuant to Rule 3b-7 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Pursuant to the Indemnification Agreement, the Company will be required to indemnify and advance expenses on behalf of an Indemnitee to the fullest extent permitted by applicable law. The Indemnification Agreement also establishes the procedures by which an Indemnitee may request and receive indemnification.

The foregoing description of the Indemnification Agreement does not purport to be complete and is qualified in its entirety by reference to the Indemnification Agreement, a copy of which is filed herewith as Exhibit 10.1 and incorporated herein by reference.

Amendment No. 2 to the Amended and Restated Shareholders Agreement

On August 16, 2024, the Company and Walgreens Boots Alliance, Inc. (“WBA”) entered into Amendment No. 2 (the “Amendment”) to the Amended and Restated Shareholders Agreement, by and between the Company and WBA, dated as of June 1, 2021 (as amended by Amendment No. 1 to the Amended and Restated Shareholders Agreement, dated as of August 2, 2022, the “Shareholders Agreement”).

Under Section 1.3(a) of the Shareholders Agreement, so long as WBA is entitled to nominate a director to the Board, except as required by applicable law, neither the Company nor the Board may increase the size of the Board in excess of a maximum size set forth in such subsection (the “Maximum Board Size”) without the prior consent of WBA, provided that the Maximum Board Size can be increased by a maximum of one additional director for a period of up to one year (or such shorter period ending upon the effectiveness of the retirement described in this proviso) to accommodate the pending retirement of a director that will occur during such one-year period.

Prior to the Amendment, the Maximum Board Size was equal to the sum of eleven plus the number of WBA’s designated directors. The Amendment increases the Maximum Board Size to the sum of fourteen plus the number of WBA’s designated directors.

The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment, a copy of which is filed herewith as Exhibit 10.2 and incorporated herein by reference.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Named Executive Officer Employment Agreements

On August 13, 2024, the Compensation and Succession Planning Committee of the Board (the “Committee”) approved a new form of Employment Agreement (the “Employment Agreement”) to be entered into with certain executive officers of the Company. As a result of such approval, the following named executive officers (together, the “NEOs” and each, an “NEO”) will enter into the Employment Agreement with the Company: James F. Cleary, the Company’s Executive Vice President and Chief Financial Officer, and Elizabeth S. Campbell, the Company’s Executive Vice President and Chief Legal Officer. Upon the execution of their respective Employment Agreements, any and all prior employment agreements with such NEOs will be superseded and replaced by the terms and conditions of the Employment Agreement.

Pursuant to the Employment Agreement, each NEO will be entitled to the following:

Continuation of base salary in effect for the NEO, subject to increase in accordance with the Company’s prevailing practice for executives from time to time;

Participation in any short-term and long-term incentive programs established and/or maintained by the Company for its senior level executives generally;

Participation in all incentive, savings, and retirement plans, practices, policies, and programs of the Company to at least the same extent as other senior executives of the Company; and

Benefits generally provided to other senior executives of the Company.

Under the Employment Agreement, the Company may terminate the NEO’s employment with or without Cause (as defined in the Employment Agreement), and the NEO may terminate the NEO’s employment with or without Good Reason (as defined in the Employment Agreement). If the NEO’s employment is terminated by the Company without Cause or by the NEO for Good Reason, the NEO shall be entitled to following (collectively, the “Severance Benefits”):

Severance equal to continued payment for two years after the date of Separation from Service (as defined in the Employment Agreement) of the NEO’s base salary (as in effect on the Date of Termination (as defined in the Employment Agreement) without giving effect to any diminution in base salary that constitutes grounds for termination by the NEO for Good Reason), with such amount to be paid in installments over such two-year period pursuant to the Company’s normal payroll policy;

Bonus payment equal to the amount, if any, to which the NEO would be entitled to receive under the Company’s annual bonus program if the NEO had remained employed for the fiscal year in which the Separation from Service occurs (assuming target attainment of any applicable performance objective), multiplied by a fraction, the numerator of which is the number of days in such current fiscal year through the Separation from Service, and the denominator of which is 365, with any such amount to be paid within 60 days following the Date of Termination;

Continued healthcare coverage under COBRA for the NEO (and to the extent permitted under COBRA, the NEO’s spouse and eligible dependents) for the 18-month period following the NEO’s Separation from Service;

Executive-level outplacement assistance under any outplacement assistance program then being maintained by the Company; and

A lump-sum cash payment to be paid within 30 days after the Separation from Service, consisting of the following accrued but unpaid cash compensation (collectively, the “Accrued Obligations”): (i) the NEO’s base salary through the Date of Termination that has not yet been paid; (ii) any earned annual bonus with respect to the immediately preceding fiscal year that has not been paid; (iii) any accrued but unpaid vacation pay; (iv) any reimbursed employee business expenses; and (v) any vested benefits accrued and due under any applicable benefit plan, policy, practice, or program of, or contract or agreement with, the Company.

The Company’s obligations to pay the Severance Benefits are conditioned upon the NEO’s execution and non-revocation of a written release of any and all claims against the Company and all related parties (the “Release”).

Under the Employment Agreement, if upon or within 24 months following a Change in Control (as defined in the Company’s 2022 Omnibus Incentive Plan, or its successor), the NEO’s employment is terminated by the Company other than for Cause or by the NEO for Good Reason, in addition to the Severance Benefits, the NEO will be entitled to two times the NEO’s target annual bonus, payable in installments over the two-year period following the Date of Termination pursuant to the Company’s normal payroll policy. Consistent with the Severance Benefits generally, the payment of such amounts shall be subject to the NEO’s timely execution and non-revocation of the Release.

Notwithstanding the foregoing, the Employment Agreement includes an acknowledgment by the NEO of the Company’s Policy Limiting Executive Severance, such that the NEO acknowledges that certain severance benefits provided for under the Employment Agreement shall not exceed 2.99 times the sum of the NEO’s base salary and target annual bonus, unless the Board determines to submit any amount that would exceed such sum to approval by the Company’s stockholders.

The Employment Agreement includes customary restrictive covenants, including, without limitation, confidentiality, non-competition, and non-solicitation covenants. The Employment Agreement also includes an acknowledgement by the NEO that all amounts payable under the Employment Agreement are subject to the terms of the Company’s clawback policies.

The foregoing description of the Employment Agreement does not purport to be complete and is qualified in its entirety by reference to the Employment Agreement, a copy of which is filed herewith as Exhibit 10.3 and incorporated herein by reference.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On August 13, 2024, the Board adopted the following amendments to the Company’s Amended and Restated Bylaws (the “Bylaws” and, as amended as of August 13, 2024, the “Amended Bylaws”), effective as of August 13, 2024:

Sections 2.01 and 2.02(a): to simplify the language regarding the location (if any) of annual and special meetings of stockholders.

Section 2.02(b): to clarify the procedures pursuant to which stockholders of the Company may call a special meeting.

Sections 2.03(a) and 2.03(b): to clarify the requirements pursuant to which the Company must provide notice of a meeting to the stockholders of record entitled to vote at any such meeting, as well as what constitutes a stockholder’s waiver of any such notice.

Section 2.03(c): to clarify the procedural mechanics and disclosure requirements in connection with stockholder submissions of proposals regarding other business at annual meetings of stockholders (other than proposals made pursuant to Rule 14a-8 under the the Exchange Act), including by revising and clarifying the requirements by which proposing stockholders and any Stockholder Associated Person (as defined in the Amended Bylaws) provide background information and disclosures associated with such other business, and make certain representations.

Section 2.03(d): to clarify the procedural mechanics and disclosure requirements in connection with stockholder nominations of directors, including by (i) requiring that nominating stockholders, any Stockholder Associated Person and director nominees provide certain background information and disclosures in connection with such nominations, and make representations, and (ii) specifying the procedural requirements with which nominating stockholders desiring to utilize the “universal proxy rules” in Rule 14a-19 under the Exchange Act must comply.

Section 2.04: to contemplate the adjournment of meetings held by means of remote communications, as provided for by recent amendments to the General Corporation Law of the State of Delaware (the “DGCL”).

Section 2.08(a): to eliminate the requirement to make a stockholder list available for examination at meetings of stockholders, as provided for by recent amendments to the DGCL, and provide for the availability of the stockholder list consistent with such recent amendments to the DGCL.

Section 2.08(b): added to the Bylaws to provide that if the Board does not fix a record date, the record date for determining stockholders entitled to notice of or to vote at a meeting or for any other purpose shall be at the close of business on the day on which the Board adopted the resolutions relating thereto.

Section 2.11: added to the Bylaws to clarify that the Board may, in its sole discretion, determine that any annual or special meeting may be held by means of remote communication and that the Board may postpone, reschedule, or cancel any annual or special meeting.

Section 3.02: to provide that the number of directors serving on the Board may be fixed from time to time by resolution adopted by the affirmative vote of a majority of the Board but shall not be less than three nor more than fifteen.

Section 3.04: to clarify the methodology by which directors may participate in any regular or special meeting of the Board.

Section 3.06: to clarify that regular meetings of the Board shall be held at such times as may be determined by resolution adopted by the affirmative vote of a majority of the Board.

Section 3.07: to provide that special meetings of the Board shall be called by the Secretary or an Assistant Secretary upon the request of the Chair of the Board, the Lead Independent Director or the President, or upon the request in writing of a majority of the directors stating the purpose or purposes of such meeting and to provide the proper means of notice of any such special meetings, as well as what shall constitute a director’s waiver of any required notice.

Section 3.12 (i.e., Section 3.11 of the Amended Bylaws): to clarify the procedures by which a director may resign.

Section 3.14 (i.e., Section 3.12 of the Amended Bylaws): to clarify that any vacancies in the Board for any reason, including by reason of death, resignation, removal newly-created directorships resulting from an increase in the number of directors, the failure of stockholders to elect the whole authorized number of directors, or any other reason, shall be filled by the Board, acting by the affirmative vote of a majority of the remaining directors then in office.

Section 4.02: to clarify the methodology by which directors may participate in any regular or special meeting of any committee.

Section 4.03: to provide that notice of a special meeting of any committee shall be given in the same manner as notice of a special meeting of the Board pursuant to Section 3.07 of the Bylaws.

Section 4.04: to provide procedures by which the committee chair presides at meetings.

Section 4.09: added to clarify what constitutes waiver of any notice required to be given to any director under the provisions of the DGCL.

Section 5.01: to clarify that the Board shall take such actions to ensure that the Company has such officers as are necessary under Section 5.01 of the Bylaws and the DGCL to enable it to conduct the affairs of the Company.

Section 5.02: to clarify the procedures by which an officer may resign.

Article VIII: added to include emergency provisions pursuant to Section 110 of the DGCL.

Section 8.06(a) (i.e., Sections 9.06(a) and 9.06(c) of the Amended Bylaws): to clarify certain language relating to the exclusive forum provisions of the Bylaws.

In addition, certain other immaterial and technical, ministerial, clarifying, and conforming changes were made to the Amended Bylaws.

The foregoing description of the Amended Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the Amended Bylaws, a copy of which is filed herewith as Exhibit 3.1 and incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d)         Exhibits.

Exhibit No.		Description
3.1		Amended and Restated Bylaws of Cencora, Inc., effective as of August 13, 2024
10.1		Form of Indemnification Agreement
10.2		Amendment No. 2 to the Amended and Restated Shareholders Agreement, dated as of August 16, 2024, by and between Cencora, Inc. and Walgreens Boots Alliance, Inc.
10.3		Form of 2024 Employment Agreement applicable to Executive Officers
104		Cover Page Interactive Data File (formatted as inline XBRL)

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	CENCORA, INC.

August 16, 2024	By:	/s/ Elizabeth S. Campbell
	Name:	Elizabeth S. Campbell
	Title:	Executive Vice President & Chief Legal Officer

EXHIBIT 3.1

AMENDED AND RESTATED BYLAWS

CENCORA, INC.

(Amended and restated as of August 13, 2024)

Table of Contents

Page

ARTICLE I OFFICES			1
	Section 1.01	Registered Office	1
	Section 1.02	Other Offices	1
ARTICLE II MEETINGS OF STOCKHOLDERS			1
	Section 2.01	Annual Meetings	1
	Section 2.02	Special Meetings	1
	Section 2.03	Notice of Meetings	4
	Section 2.04	Adjournments	14
	Section 2.05	Quorum	14
	Section 2.06	Organization	15
	Section 2.07	Inspectors of Elections	15
	Section 2.08	Fixing of Record Date	16
	Section 2.09	Voting; Proxies	16
	Section 2.10	Action by Stockholders Without a Meeting	17
	Section 2.11	Place of Meeting	17
ARTICLE III BOARD OF DIRECTORS			18
	Section 3.01	Election and Term	18
	Section 3.02	Number	18
	Section 3.03	General Powers	18
	Section 3.04	Place of Meetings	18
	Section 3.05	Organization Meeting	18
	Section 3.06	Regular Meetings	19
	Section 3.07	Special Meetings; Notice and Waiver of Notice	19
	Section 3.08	Organization of Meetings	19
	Section 3.09	Quorum and Manner of Acting	19
	Section 3.10	Action Without a Meeting	20
	Section 3.11	Resignations	20
	Section 3.12	Vacancies	20
	Section 3.13	Proxy Access for Director Nominations	20
	Section 3.14	Directors’ Compensation	24

-i-

Table of Contents

(continued)

Page

ARTICLE IV COMMITTEES			25
	Section 4.01	Constitution and Powers	25
	Section 4.02	Place of Meetings	25
	Section 4.03	Meetings; Notice and Waiver of Notice	25
	Section 4.04	Organization of Meetings	25
	Section 4.05	Quorum and Manner of Acting	25
	Section 4.06	Records	26
	Section 4.07	Vacancies	26
	Section 4.08	Members’ Compensation	26
	Section 4.09	Waiver of Notice	26
ARTICLE V OFFICERS			26
	Section 5.01	Officers; Election or Appointment	26
	Section 5.02	Term of Office; Resignation; Removal; Vacancies	26
	Section 5.03	Powers and Duties	27
	Section 5.04	Executive Management Committee	27
ARTICLE VI SHARES AND TRANSFERS OF SHARES			27
	Section 6.01	Stock Certificates; Uncertificated Shares	27
	Section 6.02	Transfers of Stock	28
	Section 6.03	Lost Certificates	28
	Section 6.04	Determination of Holders of Record for Certain Purposes	28
ARTICLE VII CORPORATE SEAL			29
	Section 7.01	Seal	29
	Section 7.02	Affixing and Attesting	29
ARTICLE VIII Emergency Bylaws			29
	Section 8.01	Emergency Bylaws	29
	Section 8.02	Meetings; Notice	29
	Section 8.03	Quorum	29
	Section 8.04	Liability	30
ARTICLE IX MISCELLANEOUS			30
	Section 9.01	Fiscal Year	30
	Section 9.02	Signatures on Negotiable Instruments	30

-ii-

Table of Contents

(continued)

Page

	Section 9.03	Execution of Proxies	30
	Section 9.04	References to Article and Section Numbers and to the Bylaws and the Certificate of Incorporation	30
	Section 9.05	References to the DGCL and Exchange Act	30
	Section 9.06	Forum for Adjudication of Disputes	30
ARTICLE X AMENDMENTS			31
	Section 10.01	Amendments	31
ARTICLE XI DEFINITIONS			31

-iii-

AMENDED AND RESTATED BYLAWS
OF
CENCORA, INC.
EFFECTIVE AUGUST 13, 2024

ARTICLE I

OFFICES

Section 1.01            Registered Office. The registered office of Cencora, Inc. (the “Corporation”) shall be located in the City of Wilmington, County of New Castle, in the State of Delaware.

Section 1.02            Other Offices. The Corporation may also have an office or offices at any other place or places within or without the State of Delaware as the Board of Directors of the Corporation (the “Board”) may from time to time determine or the business of the Corporation may from time to time require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 2.01            Annual Meetings. The annual meeting of stockholders for the election of directors of the Corporation (“Directors”) and for the transaction of such other business as may properly come before such meeting in accordance with these Bylaws shall be held at such place (if any), date and time as shall be fixed by the Board and designated in the notice or waiver of notice of such annual meeting.

Section 2.02            Special Meetings.

(a)            Special meetings of stockholders for any purpose or purposes may be called by the Board pursuant to a resolution duly adopted by a majority of the members of the Board, to be held at such place (if any), date and time as shall be designated in the notice or waiver of notice thereof. Only business within the purposes described in the notice required by Section 2.03 of this ARTICLE II may be conducted at a special meeting called by the Board.

(b)            Subject to the provisions of this Section 2.02(b) and all other applicable sections of these Bylaws, a special meeting of stockholders shall be called by the Secretary or an Assistant Secretary of the Corporation upon a written request (a “Special Meeting Request”) of one (1) or more persons who or which has Net Long Beneficial Ownership of not less than twenty-five percent (25%) of the outstanding shares of common stock of the Corporation (the “Requisite Percentage”) as of the time of such request and has or have had continuous Net Long Beneficial Ownership of at least the Requisite Percentage for a minimum of the immediately preceding one (1) year prior to the date of submission of the Special Meeting Request.

(i)            A Special Meeting Request must be delivered in writing in accordance with an Acceptable Delivery Method. A Special Meeting Request shall be valid only if it is signed and dated by each stockholder of record submitting the Special Meeting Request and each beneficial owner, if any, on whose behalf the Special Meeting Request is being made, or such stockholder’s or beneficial owner’s duly authorized agent, and includes:

(A)            a statement of the specific purpose(s) of the special meeting and the reasons for conducting such business at the special meeting;

(B)            in the case of any Director nominations proposed to be presented at the special meeting, the information required by Section 2.03(d)(iii) of this ARTICLE II;

(C)            in the case of any matter (other than a Director nomination) proposed to be conducted at the special meeting, the information required by Section 2.03(c)(iii) of this ARTICLE II;

(D)            a representation that each Requesting Stockholder, or one (1) or more representatives of each such stockholder, intends to appear in person or by proxy at the special meeting to present the proposal(s) or business to be brought before the special meeting;

(E)            an agreement by the Requesting Stockholders to notify the Corporation promptly in the event of (1) any disposition prior to the time of the special meeting of any shares included within any Requesting Stockholder’s Net Long Beneficial Ownership as of the date on which the Special Meeting Request was delivered to the Secretary and (2) any material change prior to the time of the special meeting in any Requesting Stockholder’s Net Long Beneficial Ownership;

(F)            an acknowledgement that, prior to the special meeting, any disposition of shares of the Corporation’s common stock included within any Requesting Stockholder’s Net Long Beneficial Ownership as of the date on which the Special Meeting Request was delivered to the Secretary shall be deemed to be a revocation of such Special Meeting Request with respect to such disposed shares and that any decrease in the Requesting Stockholders’ aggregate Net Long Beneficial Ownership to less than the Requisite Percentage shall be deemed to be an absolute revocation of such Special Meeting Request; and

(G)            documentary evidence that the Requesting Stockholders had Net Long Beneficial Ownership of the Requisite Percentage as of the date of delivery of the Special Meeting Request to the Secretary of the Corporation and for a minimum of the immediately preceding one (1) year prior to the date of such delivery; provided, however, that if any of the Requesting Stockholders are not the beneficial owners of the shares representing the Requisite Percentage, then to be valid, the Special Meeting Request must also include documentary evidence (or, if not simultaneously provided with the Special Meeting Request, such documentary evidence must be delivered to the Secretary within ten (10) days after the date of delivery of the Special Meeting Request to the Secretary) that the beneficial owners on whose behalf the Special Meeting Request is made had, together with any Requesting Stockholders who are beneficial owners, Net Long Beneficial Ownership of the Requisite Percentage as of the date of delivery of such Special Meeting Request to the Secretary and for a minimum of the immediately preceding one (1) year prior to the date of such delivery. In addition, the Requesting Stockholders on whose behalf the Special Meeting Request is being made shall (x) further update and supplement the information provided in the Special Meeting Request, if necessary, so that the information provided or required to be provided therein shall be true and correct as of the record date for the special meeting and as of the date that is ten (10) business days prior to the date of the special meeting or any adjournment or postponement thereof, or, if there are fewer than ten (10) business days between the date of the special meeting and such adjourned or postponed meeting, then as of the date of the special meeting so adjourned or postponed, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation (i) not later than five (5) business days after the record date for notice of and voting at the special meeting (in the case of an update and supplement required to be made as of such record date), and (ii) not later than eight (8) business days prior to the date of the special meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the special meeting has been adjourned or postponed) (in the case of an update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment, continuation, or postponement thereof) and (y) promptly provide any other information reasonably requested by the Corporation.

(ii)            A Special Meeting Request shall not be valid, and a special meeting requested by stockholders shall not be held, if:

(A)            the Special Meeting Request does not comply with this Section 2.02(b);

(B)            the Special Meeting Request relates to an item of business that is not a proper subject for stockholder action under applicable law, the Corporation’s Certificate of Incorporation (as amended from time to time, the “Certificate of Incorporation”) or these Bylaws;

(C)            the Special Meeting Request is delivered during the period commencing one hundred twenty (120) days prior to the one-year anniversary of the date of the immediately preceding annual meeting of stockholders and ending on the earlier of (x) the date of the next annual meeting or (y) thirty (30) days after the one-year anniversary of the date of the previous annual meeting of stockholders;

(D)            an identical or substantially similar item, as determined in good faith by the Board, other than the election of Directors, (1) was presented at an annual or special meeting of stockholders held not more than twelve (12) months before delivery of the Special Meeting Request or (2) is included in the Corporation’s notice of meeting as an item of business to be brought before an annual or special meeting of stockholders that has been called but not yet held or that is called for a date within one hundred twenty (120) days of the receipt by the Corporation of a Special Meeting Request;

(E)            a proposed item of business involves the election or removal of Directors, changing the size of the Board, or any similar matter (as determined in good faith by the Board, an “Election Item”) and any Election Item (1) was presented at an annual or special meeting of stockholders held not more than one hundred twenty (120) days before delivery of the Special Meeting Request or (2) is included in the Corporation’s notice of meeting as an item of business to be brought before an annual or special meeting of stockholders that has been called but not yet held or that is called for a date within one hundred twenty (120) days of the receipt by the Corporation of a Special Meeting Request; or

(F)            the Special Meeting Request was made in a manner that involved a violation of Regulation 14A under the Exchange Act, or other applicable law.

(iii)          Special meetings of stockholders called pursuant to this Section 2.02(b) shall be held at such place (if any), on such date and at such time as the Board shall fix; provided, however, that the special meeting shall not be held more than one hundred twenty (120) days after receipt by the Corporation of a valid Special Meeting Request.

(iv)          The Requesting Stockholders may revoke a Special Meeting Request by written revocation delivered to the Secretary at the principal executive offices of the Corporation at any time prior to the special meeting. If, following such revocation (or any deemed revocation pursuant to clause (F) of Section 2.02(b)(i)), there are unrevoked requests from Requesting Stockholders holding in the aggregate less than the Requisite Percentage (or there are no unrevoked requests at all), the Board, in its discretion, may cancel the special meeting of stockholders.

(v)           If none of the Requesting Stockholders appears or sends a duly authorized agent to present the business specified in the Special Meeting Request to be presented for consideration, the Corporation need not present such business for a vote at the special meeting of stockholders, notwithstanding that proxies in respect of such business may have been received by the Corporation.

(vi)          Business transacted at any special meeting of stockholders called pursuant to this Section 2.02(b) shall be limited to (A) the purpose(s) stated in a valid Special Meeting Request received from the Requesting Stockholders holding in the aggregate the Requisite Percentage and (B) any additional matters that the Board determines to include in the Corporation’s notice of the special meeting of stockholders.

Section 2.03            Notice of Meetings.

(a)             General. Unless waived as provided in Section 2.03(b), and except as otherwise required by applicable law, the Certificate of Incorporation or these Bylaws, notice of each annual or special meeting of stockholders, stating the place (if any), date and time of the meeting, and the means of remote communication (if applicable), by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, as well as the purpose or purposes of such meeting, shall be given to each stockholder of record entitled to vote at such meeting not more than sixty (60) days nor less than ten (10) days before such meeting. Unless otherwise required by applicable law, the Certificate of Incorporation or these Bylaws, notice may be given in writing directed to the stockholder’s mailing address or by electronic transmission to the stockholder’s electronic mail address as it appears on the Corporation’s records or by such other form of electronic transmission consented to by the stockholder in accordance with law, and shall be deemed given: (i) if mailed, when deposited in the U.S. mail, postage prepaid; (ii) if delivered by courier service, the earlier of when the notice is received or left at such stockholder’s address; or (iii) if given by electronic mail, when directed to such stockholder’s electronic mail address unless the stockholder has notified the Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by the DGCL.

(b)            A written waiver of any such notice signed by such person entitled thereto, or a waiver by electronic transmission by such person entitled to any such notice, whether before or after the time when such notice was required, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when such person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

(i)             Only such business (other than the nomination and election of Directors, which must comply with the provisions of Section 2.03(d) or Section 3.13 of these Bylaws and applicable law) may be transacted at an annual meeting of stockholders as is (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof), (B) properly brought by or at the direction of the Board or any duly authorized committee thereof, or (C) properly brought by any stockholder of the Corporation who (x) is entitled to vote at the annual meeting of stockholders, (y) is a stockholder of record at the time that notice is provided to the Secretary of the Corporation pursuant to this Section 2.03 and through the date of such annual meeting of stockholders, and (z) complies with all the notice procedures set forth in this Section 2.03(c). In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a Proposing Stockholder (other than the nomination of a person for election as a Director, which must be made in compliance with Section 2.03(d) or Section 3.13 of these Bylaws and applicable law), such business must be a proper matter for stockholder action pursuant to these Bylaws and applicable law and such Proposing Stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.

(ii)            To be considered timely, a Proposing Stockholder’s notice shall be delivered in accordance with an Acceptable Delivery Method at the principal executive offices of the Corporation no later than the close of business on the ninetieth (90^th) day and no earlier than the close of business on the one hundred twentieth (120^th) day prior to the one-year anniversary date of the preceding year’s annual meeting of stockholders; provided, however, that in the event that the annual meeting of stockholders is called for a date that is not within thirty (30) 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 tenth (10^th) day following the day on which public announcement of the date of such annual meeting was first made by the Corporation. In no event shall any adjournment, recess, postponement, continuation or rescheduling of an annual meeting, or announcement thereof, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(iii)           To be in proper written form, a Proposing Stockholder’s notice must set forth the following information:

(A)           As to each matter that the Proposing Stockholder seeks to bring before the annual meeting:

(1)

a brief description of the business desired to be brought before the annual meeting;

(2)

the text of any proposal relating to such business, including the complete text of any resolutions proposed for consideration, and in the event that such business includes a proposal to amend the Certificate of Incorporation or these Bylaws, the language of the proposed amendment;

(3)

the reasons for conducting such business at the annual meeting (including the text of any reasons for the proposed business that will be disclosed in any proxy statement or supplement thereto to be filed with the Securities and Exchange Commission (the “SEC”));

(4)

a complete and accurate description of any material interest of the Proposing Stockholder and any Stockholder Associated Person, individually or in the aggregate, in such business, including any anticipated material benefit to the Proposing Stockholder and any Stockholder Associated Person therefrom; and

(5)

any other information relating to such business that would be required to be disclosed in a proxy statement or other filing required to be made by such Proposing Stockholder in connection with the solicitation of proxies in support of such proposed business pursuant to Section 14(a) under the Exchange Act (or pursuant to any law or statute replacing such section) and the rules and regulations promulgated thereunder.

(B)            As to the Proposing Stockholder and any Stockholder Associated Person, if any, on whose behalf the proposal is being made:

(1)

whether such person(s) is/are providing the notice at the request of a beneficial holder of Corporation Securities;

(2)

the name and address of such Proposing Stockholder and Stockholder Associated Person (including, if applicable, the name and address that appear on the Corporation’s stock ledger);

(3)

(i) the class and series and number of shares of Corporation Securities that are, directly or indirectly, owned of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Stockholder or any Stockholder Associated Person (specifying the type of ownership), (ii) the nominee holder for, and number of, any Corporation Securities owned beneficially but not of record by such Proposing Stockholder or any Stockholder Associated Person, the number of such shares of stock of the Corporation held by each such nominee holder, and any pledge with respect to any of such stock, (iii) the dates such Corporation Securities were acquired, (iv) the investment intent of such acquisition as would be required to be disclosed on Item 4 of Schedule 13D and (v) evidence of such beneficial or record ownership;

(4)

a complete description of all Derivative Instruments or Short Interests owned, held or entered into by such Proposing Stockholder or any Stockholder Associated Persons;

(5)

a complete and accurate description of any agreement, arrangement or understanding that has been made, the effect or intent of which is to increase or decrease the voting power of such Proposing Stockholder or any Stockholder Associated Person with respect to any Corporation Securities, without regard to whether such transaction is required to be reported on a Schedule 13D in accordance with the Exchange Act;

(6)

a complete and accurate description of any performance-related fees (other than an asset-based fee) to which such Proposing Stockholder or any Stockholder Associated Persons may be entitled as a result of any increase or decrease in the value of any Corporation Securities, Derivative Instruments or Short Interest;

(7)

a complete and accurate description of all agreements, arrangements and understandings between or among such Proposing Stockholder, any Stockholder Associated Persons, and/or any other person (naming each such person) in connection with or related to the proposed nomination or other business to be brought at the meeting, including without limitation (i) any proxy, contract, arrangement, understanding or relationship pursuant to which such person has the right to vote any Corporation Securities and (ii) any other agreements that would be required to be disclosed by such person or any other person pursuant to Item 5 or Item 6 of a Schedule 13D that would be filed pursuant to the Exchange Act (regardless of whether the requirement to file a Schedule 13D is applicable to the Proposing Stockholder, the Stockholder Associated Person or other person);

(8)

the names and addresses of any other beneficial or record owners of Corporation Securities known by such proposing Stockholder to be financially supporting the proposed business;

(9)

a complete and accurate description of any pending or to such Proposing Stockholder’s knowledge, threatened legal proceeding in which such stockholder or any Stockholder Associated Person is a party or participant involving the Corporation or any officer, director, affiliate or associate of the Corporation;

(10)

a representation from such Proposing Stockholder as to whether such stockholder or any beneficial owner on whose behalf such stockholder is acting intends, or is part of a group (providing the name and address of each participant) that intends to (i) deliver a proxy statement to and/or form of proxy with holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal, (ii) otherwise solicit proxies from stockholders in support of the proposal, and/or (iii) to solicit the holders of the Corporation’s shares in accordance with Rule 14a-19 under the Exchange Act; and

(11)

a representation from such Proposing Stockholder that such stockholder (i) is, and will at the time of such meeting, be a holder of record of Corporation Securities entitled to vote at such meeting (ii) intends to vote such Corporation Securities at such meeting, and (iii) intends to appear in person at, or send a Qualified Representative to, such meeting to make such proposed nomination or present such other proposed business, as applicable, before such meeting.

(iv)          Any Proposing Stockholder shall update the notice delivered and information previously provided to the Corporation pursuant to this Section 2.03(c), if necessary, so that the information provided or required to be provided in such notice shall continue to be true and correct as of (A) the record date for the meeting of stockholders and (B) the date that is ten (10) business days prior to such meeting (or any adjournment or postponement thereof). Such update shall be delivered in accordance with an Acceptable Delivery Method not later than five (5) business days after such record date for such meeting (in the case of an update required to be made as of the record date) and not later than eight (8) business days prior to the date of the meeting (in the case of an update required to be made as of the date that is ten (10) business days prior to such meeting or any adjournment or postponement thereof). A Proposing Stockholder may not, after the last day on which a notice would be timely under this Section 2.03(c), cure in any way any defect preventing the submission of a proposal.

(v)           No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting of stockholders in accordance with the procedures set forth in this Section 2.03(c); provided, however, that, once business has been properly brought before the annual meeting of stockholders in accordance with such procedures, nothing in this Section 2.03(c) shall be deemed to preclude discussion by any stockholder of any such business. Except as otherwise provided by law, the Certificate of Incorporation, or these Bylaws, the chairperson of an annual meeting of stockholders shall have the power and duty to determine whether any business was properly brought before the annual meeting of stockholders in accordance with the foregoing procedures and, if such proposed business is deemed not to have been properly made, to declare to the meeting that the business was not properly brought before the meeting, in which case such business shall be disregarded and declared to be out of order, notwithstanding that proxies with respect to such vote may have been received by the Corporation. Notwithstanding the foregoing provisions of this Section 2.03(c), unless otherwise required by law, if the Proposing Stockholder (or a qualified representative of such stockholder) proposing any business to be conducted at the annual meeting of stockholders does not appear at the annual meeting of stockholders to propose such business, such proposed business shall not be transacted, and no vote shall be taken with respect to such proposed business, notwithstanding that proxies with respect to such vote may have been received by the Corporation.

(vi)          Notwithstanding the foregoing provisions of this Section 2.03(c), a stockholder shall also comply with all applicable requirements of the Exchange Act with respect to the matters set forth in this Section 2.03(c). This Section 2.03(c) is expressly intended to apply to any business proposed to be brought before an annual meeting of stockholders, other than any proposal made pursuant to Rule 14a-8 under the Exchange Act. Nothing contained in this Section 2.03(c) shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

(d)            Advance Notice Provisions for Nomination of Directors.

(i)             No nominations of persons for election to the Board may be made at the annual meeting of the stockholders or at any special meeting of stockholders called for the purpose of electing Directors, other than nominations that are (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof), (B) properly brought before the annual meeting or special meeting of stockholders by or at the direction of the Board (or any duly authorized committee thereof), (C) otherwise properly brought before the annual meeting or special meeting by any stockholder of the Corporation who (x) is a stockholder of record on the date of the giving of the notice provided for in this Section 2.03(d) and on the record date for the determination of stockholders entitled to notice of and to vote at such annual meeting or special meeting of stockholders and (y) complies with all the notice procedures set forth in this Section 2.03(d), or (D) otherwise properly brought before the annual meeting of stockholders by any stockholder or group of stockholders who complies with all of the requirements of and procedures set forth in Section 3.13 of these Bylaws.

(ii)            In addition to any other applicable requirements, for a nomination to be made by a stockholder pursuant to this Section 2.03(d), such Proposing Stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be considered timely, such notice must be delivered in accordance with an Acceptable Delivery Method and received at the principal executive offices of the Corporation: (A) in the case of an annual meeting of stockholders, no later than the close of business on the ninetieth (90^th) day nor earlier than the close of business on the one hundred twentieth (120^th) day prior to the one-year anniversary of the preceding year’s annual meeting of stockholders; provided, however, that in the event that the annual meeting of stockholders is called for a date that is not within thirty (30) 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 tenth (10^th) day following the day on which such public announcement of the date of such annual meeting was first made by the Corporation; and (B) 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 tenth (10^th) day following the day on which public announcement of the date of such special meeting was first made by the Corporation. In no event shall the adjournment, recess, postponement, continuation, or rescheduling of an annual meeting of stockholders or a special meeting of stockholders called for the purpose of electing Directors, or the public announcement thereof, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(iii)           To be in proper written form, a Proposing Stockholder’s notice to the Secretary pursuant to this Section 2.03(d) must be in writing and set forth the following information:

(A)           as to each person whom the Proposing Stockholder proposes to nominate for election or re-election as a Director;

(1)

the name, age, business address and residence address of the Proposed Nominee;

(2)

the principal occupation or employment of such Proposed Nominee;

(3)

(A) the class and series and number of Corporation Securities which are, directly or indirectly, owned beneficially or of record by such Proposed Nominee, (B) the nominee holder for, and number of, any Corporation Securities owned beneficially but not of record by such Proposed Nominee, the number of such shares of stock of the Corporation held by each such nominee holder, and any pledge with respect to any of such stock (C) the dates such Corporation Securities were acquired, (D) the investment intent of such acquisition as would be required to be disclosed on Item 4 of Schedule 13D, (E) evidence of such beneficial or record ownership, and (F) any Derivative Instruments or Short Interests owned, held or entered into by such Proposed Nominee;

(4)

a Questionnaire with respect to the background and qualification of such person, completed and executed by such Proposed Nominee in the form required by the Corporation (which form such Proposing Stockholder shall request in writing from the Secretary of the Corporation prior to submitting notice and which the Secretary of the Corporation shall provide within ten (10) days after receiving such request);

(5)

a written representation and agreement completed by such Proposed Nominee in the form required by the Corporation providing that such Proposed Nominee (which form such stockholder shall request in writing from the Secretary of the Corporation prior to submitting notice and which the Secretary shall provide within ten (10) days after receiving such request): (A) is not and will not become a party to any agreement, arrangement or understanding with, and any commitment or assurance to, any person or entity as to how a person, if elected as a Director, will act or vote on any issue or question that has not been disclosed to the Corporation or that could limit or interfere with such person’s ability to comply, if elected as a Director, with such person’s fiduciary duties under applicable law; (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a Director or a Director nominee that has not been disclosed to the Corporation; (C) will, if elected as a Director, comply with all applicable rules of any securities exchanges upon which the Corporation’s securities are listed, the Certificate of Incorporation, these Bylaws, all applicable publicly disclosed corporate governance, ethics, conflict of interest, confidentiality, stock ownership and trading policies and all other guidelines and policies of the Corporation generally applicable to Directors (which other guidelines and policies will be provided to such person within five (5) business days after the Secretary receives any written request therefor from such person), and all applicable fiduciary duties under state law; (D) intends to serve a full term as a Director, if elected; and (E) will provide facts, statements and other information in all communications with the Corporation and its stockholders that are or will be true and correct and that do not and will not omit to state any fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading;

(6)

whether such Proposed Nominee is eligible for consideration as an independent director under the relevant standards contemplated by Item 407(a) of Regulation S-K adopted by the SEC and the relevant listing standards of any exchange where the Corporation’s equity securities are listed;

(7)

details of any relationship between such Proposed Nominee and any person that would require disclosure on Schedule 13D as if such Proposed Nominee was required to file a Schedule 13D with respect to the Corporation;

(8)

details of any position where such Proposed Nominee has served as an officer or director of any Competitor within the three (3) years preceding the submission of the stockholder notice; and

(9)

a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among the Proposing Stockholder (including the beneficial owner, if any, on whose behalf the nomination is being made) and any Stockholder Associated Person, on the one hand, and each such Proposed Nominee, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such Proposing Stockholder (including the beneficial owner, if any, on whose behalf the nomination is being made) and any Stockholder Associated Person were the “registrant” for purposes of such rule and such Proposed Nominee were a Director or executive officer of such registrant.

(B)            as to the Proposing Stockholder and any Stockholder Associated Person, if any, on whose behalf the nomination is being made, the information called for pursuant to Section 2.03(c)(iii)(B).

(iv)          Any Proposing Stockholder shall update the notice delivered and information previously provided to the Corporation pursuant to this Section 2.03(d), if necessary, so that the information provided or required to be provided in such notice shall continue to be true and correct as of (i) the record date for the meeting of stockholders and (ii) the date that is ten (10) business days prior to the meeting (or any adjournment or postponement thereof). Such update shall be received by the Secretary in accordance with an Acceptable Delivery Method not later than five (5) business days after the record date for such meeting (in the case of an update required to be made as of the record date) and not later than eight (8) business days prior to the date of such meeting (in the case of an update required to be made as of the date that is ten (10) business days prior to such meeting or any adjournment or postponement thereof). A Proposing Stockholder may not, after the last day on which a notice would be timely under this Section 2.03(d), cure, in any way, any defect preventing the submission of a proposal.

(v)           No person shall be eligible for election as a Director unless nominated in accordance with the procedures set forth in this Section 2.03(d) or Section 3.13. Except as otherwise provided by law, the Certificate of Incorporation, or these Bylaws, the chairperson of the meeting shall have the power and duty to determine whether a nomination was made in accordance with all of the procedures set forth in these Bylaws. If such proposed nomination is deemed not to have been properly made, the chairperson of the meeting shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded and declared to be out of order, notwithstanding that proxies with respect to such vote may have been received by the Corporation. Notwithstanding the foregoing provisions of this Section 2.03(d), unless otherwise required by law, if the Proposing Stockholder (or a qualified representative of such stockholder) does not appear at the meeting of stockholders to present such nomination, such nomination shall be disregarded, and no vote shall be taken with respect to such proposed nomination, notwithstanding that proxies with respect to such vote may have been received by the Corporation.

(vi)          If any person provides notice pursuant to Rule 14a-19(b) under the Exchange Act in connection with a stockholder’s notice provided under this Section 2.03(d) and such person subsequently either (x) notifies the Corporation that such person no longer intends to solicit proxies in support of the election of such Proposed Nominee in accordance with Rule 14a-19(b) under the Exchange Act or (y) fails to comply with the requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) under the Exchange Act; and no other person that has provided notice pursuant to Rule 14a-19(b) under the Exchange Act with respect to such Proposed Nominee (x) intends to solicit proxies in support of the election of such Proposed Nominee in accordance with Rule 14a-19(b) under the Exchange Act and (y) has complied with the requirements of Rule 14a-19(a)(2) and Rule 14a-19(a)(3) under the Exchange Act, then the nomination of such Proposed Nominee shall be disregarded and no vote on the election of such Proposed Nominee shall occur (notwithstanding that proxies in respect of such vote may have been received by the Corporation). Upon request by the Corporation, if any person provides notice pursuant to Rule 14a-19(b) under the Exchange Act in connection with a stockholder’s notice provided under this Section 2.03(d), such stockholder shall deliver, in accordance with an Acceptable Delivery Method no later than five (5) business days prior to the applicable meeting date, reasonable evidence that the requirements of Rule 14a-19(a)(3) under the Exchange Act have been satisfied.

Section 2.04            Adjournments. Whenever a meeting of stockholders, annual or special, is adjourned to another date, time or place, notice need not be given of the adjourned meeting if the date, time and place, if any, thereof and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting thereof are (a) announced at the meeting at which the adjournment is taken, (b) displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders and proxyholders to participate in the meeting by means of remote communication, or (c) set forth in the notice of the meeting given in accordance with these Bylaws. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote thereat. At the adjourned meeting, any business may be transacted which might have been transacted at the original meeting. Notwithstanding anything in these Bylaws to the contrary, the chairperson of any meeting of stockholders shall have the right, acting in his or her sole discretion, whether or not a quorum is present, to adjourn such meeting to another time and place (if any).

Section 2.05            Quorum. At each meeting of stockholders, except where otherwise required by law, the Certificate of Incorporation or these Bylaws, the holders of a majority of the issued and outstanding shares of capital stock of the Corporation entitled to vote on a matter at the meeting, present in person or represented by proxy, shall constitute a quorum. For purposes of the foregoing, where a separate vote by class or classes is required for any matter, the holders of a majority of the issued and outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. Two (2) or more classes or series of stock shall be considered a single class if the holders thereof are entitled to vote together as a single class at the meeting. In the absence of a quorum of the holders of any class of stock entitled to vote on a matter, the meeting of such class may be adjourned from time to time in the manner provided by these Bylaws until a quorum of such class shall be so present or represented. Shares of its own capital stock belonging on the record date for the meeting to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of Directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

Section 2.06            Organization. The Chair shall act as chairperson at all meetings of stockholders at which he or she is present, and as such chairperson shall call such meetings of stockholders to order and preside thereat. If the Chair shall be absent from any meeting of stockholders, the duties otherwise provided in this Section 2.06 to be performed by him or her at such meeting, shall be performed at such meeting by the Chief Executive Officer (if such office is held by a person other than the Chair) or the Lead Independent Director (if the offices of the Chair and Chief Executive Officer are held by the same person), unless otherwise determined by the Board. If none of the Chair, the Chief Executive Officer, or the Lead Independent Director is available to perform the duties of chairperson of a meeting of stockholders, the duties of chairperson of such meeting of stockholders pursuant to this Section 2.06 shall be performed at such meeting by a chairperson designated by the Board, or in the absence of such designation, by a chairperson chosen at the meeting. The Secretary of the Corporation shall act as secretary at all meetings of the stockholders, but in his or her absence, the chairperson of the meeting may appoint any person present to act as secretary of the meeting.

Section 2.07            Inspectors of Elections. Prior to any meeting of stockholders, the Board, or a Chair of the Board designated by the Board, shall appoint one (1) or more inspectors to act at such meeting and make a written report thereof and may designate one (1) or more persons as alternate inspectors to replace any inspector who fails to appear or act. If no inspector or alternate is able to act at the meeting of stockholders, such person presiding at the meeting shall appoint one (1) 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. The inspectors shall ascertain the number of shares outstanding and the voting power of each, determine the shares represented at the meeting and the validity of proxies and ballots, count all votes and ballots, determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors and 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 to assist them in the performance of their duties. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting. No ballot, proxy or vote, nor any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls. In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted therewith, any information provided by a stockholder who submits a proxy by telegram, cablegram or other electronic transmission from which it can be determined that the proxy was authorized by the stockholder, ballots and the regular books and record of the Corporation, and they may also 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 that 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 such purpose, they shall, at the time they make their certification, specify the precise information considered by them, including such 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.

Section 2.08            Fixing of Record Date.

(a)            The Board may fix a date not more than sixty (60) days nor less than ten (10) days prior to the date of any meeting of stockholders, as a record date for the determination of the stockholders entitled to notice of and to vote at such meeting and any adjournment thereof, and in such case such stockholders and only such stockholders of record on the date so fixed shall be entitled to notice of, and to vote at, such meeting and any adjournment thereof, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. No record date shall precede the date on which the Board establishes such record date. The Secretary or an Assistant Secretary shall prepare and make or cause to be prepared and made, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at such meeting, arranged in alphabetical order and showing the address of each such stockholder and the number of shares registered in the name of each such stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least ten (10) days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting, or (ii) during ordinary business hours, at the principal place of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders.

(b)            If the Board shall not fix such a record date, the record date for determining stockholders entitled to notice of or to vote at a meeting or for any other purpose shall be at the close of business on the day on which the Board shall adopt the resolution relating thereto. Determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of such meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

Section 2.09            Voting; Proxies.

(a)            General. Unless otherwise provided in the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders, at which a quorum is present, shall be entitled to one (1) vote for each share of stock held by such stockholder that has voting power upon the matter in question. If the Certificate of Incorporation provides for more or less than one (1) vote for any share on any matter, every reference in these Bylaws to a majority or other proportion of shares of stock shall refer to such majority or other proportion of the votes of such shares of stock. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power, regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with a Secretary. Voting at meetings of stockholders need not be by written ballot unless so directed by the chairperson of the meeting or the Board.

(b)            Election of Directors.

(i)            Majority Voting. Except as provided in paragraph (ii) below with respect to Contested Elections (as defined below), each nominee for Director shall be elected to the Board by a Majority Vote (as defined below) with respect to that Director nominee’s election at any meeting for the election of Directors at which a quorum is present. For the purposes of these Bylaws, a “Majority Vote” means that the number of votes cast in favor of a Director nominee’s election must exceed the number of votes cast against such Director nominee’s election. Abstentions and broker non-votes, if any, will not count as a vote cast with respect to that Director Nominee.

(ii)            Contested Elections. Directors shall be elected by a plurality of the votes cast in any Contested Election. For the purposes of these Bylaws, a “Contested Election” means any meeting of stockholders at which the number of nominees for election of directors exceeds the number of directors to be elected as of the tenth (10^th) day preceding the date that the Corporation first mails its notice of meeting for such meeting to the stockholders of the Corporation.

(c)            Other Action by Stockholders. In all other matters, unless otherwise required by law, the Certificate of Incorporation or these Bylaws, the affirmative vote of the holders of a majority of the 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. Abstentions and broker non-votes, if any, will not count as a vote cast.

(d)            Separate Class Vote. Where a separate vote by class or classes is required, the affirmative vote of the holders of a majority of the shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class or classes, except as otherwise required by law, the Certificate of Incorporation or these Bylaws.

Section 2.10            Action by Stockholders Without a Meeting. The stockholders may not take any action without a duly called meeting of the stockholders.

Section 2.11            Place of Meeting. In lieu of holding an annual or special meeting of stockholders at a designated place, the Board may, in its sole discretion, determine that any annual or special meeting of stockholders may be held by means of remote communication in accordance with the DGCL. The Board may postpone, reschedule, or cancel any annual or special meeting of stockholders in accordance with these Bylaws.

ARTICLE III

BOARD OF DIRECTORS

Section 3.01            Election and Term. Except as otherwise provided by law or by the Certificate of Incorporation, and subject to the provisions of Section 3.12 and Section 3.13 of this ARTICLE III, Directors shall be elected at the annual meeting of stockholders to serve until the next annual meeting of stockholders and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.

Section 3.02            Number. The number of Directors may be fixed from time to time by resolution adopted by the affirmative vote of a majority of the Board but shall not be less than three (3) nor more than fifteen (15).

Section 3.03            General Powers. The business, properties and affairs of the Corporation shall be managed by, or under the direction of, the Board, which, without limiting the generality of the foregoing, shall have power to elect and appoint officers of the Corporation, to appoint and direct agents, to grant general or limited authority to officers, employees and agents of the Corporation to make, execute and deliver contracts and other instruments and documents in the name and on behalf of the Corporation and over its seal, without specific authority in each case, and, by resolution adopted by a majority of the whole Board, to appoint committees of the Board in addition to those appointed pursuant to ARTICLE IV hereof, the membership of which may consist of one (1) or more Directors, and which may advise the Board with respect to any matters relating to the conduct of the Corporation’s business. The Board may designate one (1) or more Directors as alternate members of any committee, including those appointed pursuant to ARTICLE IV hereof, who may replace any absent or disqualified member at any meeting of the committee. In addition, the Board may exercise all the powers of the Corporation and do all lawful acts and things that are not reserved to the stockholders by law or by the Certificate of Incorporation.

Section 3.04            Place of Meetings. Meetings of the Board may be held at any place, within or without the State of Delaware, from time to time as designated by the Board. Directors may participate in any regular or special meeting of the Board by means of conference telephone or other communications equipment pursuant to which all persons participating in the meeting of the Board can hear each other and such participation shall constitute presence in person at such meeting.

Section 3.05            Organization Meeting. A newly-elected Board shall meet and organize, and also may transact any other business that might be transacted at a regular meeting thereof, as soon as practicable after each annual meeting of stockholders, at the place (if any) or in the manner which such meeting of stockholders took place, without notice of such meeting, provided a majority of the whole Board is present. If such a majority is not present, such organizational meeting may be held at any other time or place that may be specified in a notice given in the manner provided in Section 3.07 of this ARTICLE III for special meetings of the Board, or in a waiver of notice thereof.

Section 3.06            Regular Meetings. Regular meetings of the Board shall be held at such times as may be determined by resolution adopted by the affirmative vote of a majority of the Board and no notice shall be required for any regular meeting. Except as otherwise provided by law, any business may be transacted at any regular meeting of the Board.

Section 3.07            Special Meetings; Notice and Waiver of Notice. Special meetings of the Board shall be called by the Secretary or an Assistant Secretary upon the request of the Chair of the Board, the Lead Independent Director or the President, or upon the request in writing a majority of the Directors stating the purpose or purposes of such meeting. Notice of any special meeting of the Board shall be mailed to each Director at his or her business or residence not later than three (3) days before the day on which such meeting is to be held or shall be sent to either of such places by facsimile or other electronic transmission, or be communicated to each Director personally or by telephone, not later than twelve (12) hours before the commencement of such meeting or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate under the circumstances. A meeting may be held at any time without notice if all the Directors are present (except as otherwise provided by applicable law) or if those who are not present waive notice of the meeting in accordance with Section 4.09 of ARTICLE IV hereof, either before or after such meeting, or as otherwise provided by applicable law. Neither the business to be transacted at, nor the purpose of, any special meeting of the Board need be specified in any notice or written waiver of notice unless so required by the Certificate of Incorporation or by the Bylaws. Unless limited by law, by the Certificate of Incorporation or by the Bylaws, any and all business may be transacted at any special meeting.

Section 3.08            Organization of Meetings. The Chair shall preside at all meetings of the Board at which he or she is present. If the Chair shall be absent from any meeting of the Board, the duties otherwise provided in this Section 3.08 of ARTICLE III to be performed by him or her at such meeting shall be performed at such meeting by the Lead Independent Director or, if the Lead Independent Director shall be absent or if no Lead Independent Director has been elected, a Director chosen by a majority of the other Directors who are present at the meeting. The Secretary of the Corporation shall act as the secretary at all meetings of the Board, and in his or her absence a temporary secretary shall be appointed by the chairperson of the meeting.

Section 3.09            Quorum and Manner of Acting. Except as otherwise provided by Section 3.05 of this ARTICLE III, at every meeting of the Board a majority of the total number of Directors constituting the whole Board shall constitute a quorum; provided, however, that in no event shall a quorum be constituted by less than two (2) Directors. Except as otherwise provided by law or by the Certificate of Incorporation, or by Section 3.12 of this ARTICLE III, or by Section 4.01 or Section 4.07 of ARTICLE IV, or by ARTICLE VIII, the act of a majority of the Directors present at any such meeting, at which a quorum is present, shall be the act of the Board. In the absence of a quorum, a majority of the Directors present may adjourn any meeting, from time to time, until a quorum is present. No notice of any adjourned meeting need be given other than by announcement at the meeting that is being adjourned. Members of the Board or any committee thereof may participate in a meeting of the Board or of such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by a member of the Board in a meeting pursuant to this Section 3.09 of ARTICLE III shall constitute his or her presence in person at such meeting.

Section 3.10            Action Without a Meeting. Except as otherwise provided by law or by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if prior to such action all members of the Board or of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or the committee.

Section 3.11            Resignations. Any Director may resign at any time upon written notice of resignation or notice by electronic transmission to the Chair or the Secretary of the Corporation. Any resignation shall be effective immediately unless a certain date is specified for it to take effect, in which event it shall be effective upon such date, and acceptance of any resignation shall not be necessary to make it effective, irrespective of whether the resignation is tendered subject to such acceptance.

Section 3.12            Vacancies. Subject to the rights of the holders of any series of preferred stock or any other class of capital stock of the Corporation (other than the common stock of the Corporation) then outstanding, any vacancies in the Board for any reason, including by reason of death, resignation, removal, newly-created directorships resulting from an increase in the number of Directors, the failure of the stockholders to elect the whole authorized number of directors, or any other reason, shall be filled only by the Board, acting by the affirmative vote of a majority of the remaining Directors then in office, although less than a quorum, and any Directors so elected shall hold office until the next election of Directors and until their successors are duly elected and qualified.

Section 3.13            Proxy Access for Director Nominations.

(a)            Whenever the Board solicits proxies with respect to the election of Directors at an annual meeting of stockholders, subject to the provisions of this Section 3.13, the Corporation shall include in its proxy statement for an annual meeting of stockholders, in addition to any persons nominated for election by the Board or any committee thereof, the name, together with the Required Information, of any person nominated for election (the “Stockholder Nominee”) to the Board by a stockholder that satisfies, or by a group of no more than twenty (20) separate stockholders that satisfy, the requirements of this Section 3.13 (each such stockholder or group, an “Eligible Stockholder”), and that expressly elects at the time of providing the notice required by this Section 3.13 (the “Notice of Proxy Access Nomination”) to have its nominee included in the Corporation’s proxy materials pursuant to this Section 3.13.

(i)            For purposes of this Section 3.13, a group of funds under common management and investment control shall be treated as one (1) stockholder or person for this purpose. No stockholder or person may be a member of more than one (1) group of persons constituting an Eligible Stockholder under this Section 3.13.

(ii)            For purposes of this Section 3.13, the “Required Information” that the Corporation will include in its proxy statement is (A) the information concerning the Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in pursuant to Section 14(a) of the Exchange Act (or pursuant to any law or statute replacing such section) and the rules and regulations thereunder and (B) if the Eligible Stockholder so elects, a Statement (as defined in Section 3.13(f) below).

(iii)           To be timely, the Required Information and Notice of Proxy Access Nomination must be delivered and received by the Secretary of the Corporation no earlier than one hundred fifty (150) days and no later than one hundred twenty (120) days before the anniversary of the date that the Corporation first distributed its definitive proxy statement for the previous year’s annual meeting of stockholders. Public announcement of an adjournment or postponement of an annual meeting shall not commence a new time period for the giving of the Notice of Proxy Access Nomination and the Required Information.

(b)            The maximum number of Stockholder Nominees (including Stockholder Nominees that were submitted by an Eligible Stockholder for inclusion in the Corporation’s proxy materials pursuant to this Section 3.13 but either are subsequently withdrawn or that the Board decides to nominate as Director nominees) appearing in the Corporation’s proxy materials with respect to an annual meeting of stockholders shall not exceed the greater of (i) two (2) nominees or (ii) twenty percent (20%) of the Directors then currently in office at the Corporation, rounding down to the nearest whole number of Board seats as of the last day on which the Notice of Proxy Access Nomination may be delivered pursuant to, and in accordance with, this Section 3.13 (the “Final Proxy Access Nomination Date”). In the event that one (1) or more vacancies for any reason occurs on the Board after the Final Proxy Access Nomination Date but before the date of the annual meeting and the Board resolves to reduce the size of the Board in connection therewith, the maximum number of Stockholder Nominees included in the Corporation’s proxy materials shall be calculated based on the number of Directors in office as so reduced. In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 3.13 exceeds this maximum number, each Eligible Stockholder will select one (1) Stockholder Nominee for inclusion in the Corporation’s proxy materials until the maximum number is reached, going in order of the amount (largest to smallest) of shares of common stock of the Corporation each Eligible Stockholder disclosed as owned in the Notice of Proxy Access Nomination submitted to the Corporation. If the maximum number is not reached after each Eligible Stockholder has selected one (1) Stockholder Nominee, this selection process will continue as many times as necessary, following the same order each time, until the maximum number is reached.

(c)            For purposes of this Section 3.13, an Eligible Stockholder shall be deemed to “own” only those outstanding shares of common stock of the Corporation as to which the stockholder possesses both (i) the full voting and investment rights pertaining to the shares and (ii) the full economic interest in (including the opportunity for profit from and risk of loss on) such shares; provided that the number of shares calculated in accordance with clauses (i) and (ii) shall not include any shares (A) sold by such stockholder or any of its affiliates in any transaction that has not been settled or closed, (B) borrowed by such stockholder or any of its affiliates for any purposes or purchased by such stockholder or any of its affiliates pursuant to an agreement to resell or (C) subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such stockholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of shares of outstanding stock of the Corporation, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of (1) reducing in any manner, to any extent or at any time in the future, such stockholder’s or affiliates’ full right to vote or direct the voting of any such shares, and/or (2) hedging, offsetting or altering to any degree any gain or loss realized or realizable from maintaining the full economic ownership of such shares by such stockholder or affiliate. A stockholder shall “own” shares held in the name of a nominee or other intermediary so long as the stockholder retains the right to instruct how the shares are voted with respect to the election of Directors and possesses the full economic interest in the shares. A stockholder’s ownership of shares shall be deemed to continue during any period in which the stockholder has (i) delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement that is revocable at any time by the stockholder or (ii) loaned such shares, provided the stockholder has the power to recall such loaned shares on three (3) business days’ notice. The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings. Whether outstanding shares of the common stock of the Corporation are “owned” for these purposes shall be determined by the Board or any committee thereof.

(d)            In order to make a nomination pursuant to this Section 3.13, an Eligible Stockholder must have owned (as defined above) at least three percent (3%) or more of the Corporation’s outstanding common stock (the “Required Shares”) continuously for at least three (3) years (the “Minimum Holding Period”) as of the date the Notice of Proxy Access Nomination is delivered and received by the Corporation in accordance with this Section 3.13, and the Eligible Stockholder must continue to own the Required Shares through the date of the annual meeting.

(e)            Within the time period specified in this Section 3.13 for delivering the Notice of Proxy Access Nomination, an Eligible Stockholder must provide the following information in writing to the Secretary of the Corporation: (i) one (1) or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite Minimum Holding Period) verifying that, as of the date the Notice of Proxy Access Nomination is delivered and received by the Secretary of the Corporation, the Eligible Stockholder owns, and has owned continuously, the Required Shares for the Minimum Holding Period, and the Eligible Stockholder’s agreement to provide, within five (5) business days after the (A) record date for the annual meeting of stockholders, written statements from the record holder and intermediaries verifying the Eligible Stockholder’s continuous ownership of the Required Shares through the record date and (B) the date of the annual meeting of stockholders, written statements from the record holder and intermediaries verifying the Eligible Stockholder’s continuous ownership of the Required Shares through the date of the annual meeting; (ii) the information, representations and agreements that would be required to be set forth in a stockholder’s notice of nomination pursuant to Section 2.03(d)(iii) of these Bylaws (but without regard to the time periods set forth in Section 2.03(d)(ii) of these Bylaws); (iii) a copy of the Schedule 14N that has been filed with the SEC as required by Rule 14a-18 under the Exchange Act, as may be amended; (iv) a representation that the Eligible Stockholder (A) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control at the Corporation, and does not presently have such intent, (B) presently intends to maintain qualifying ownership of the Required Shares through the date of the annual meeting, (C) has not designated or nominated and will not designate or nominate for election to the Board at the annual meeting of stockholders any person other than the Stockholder Nominee(s) being nominated pursuant to this Section 3.13, (D) has not engaged and will not engage in, and has not been and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(1) under the Exchange Act in support of the election of any individual as a Director at the Corporation’s annual meeting other than its Stockholder Nominee or a nominee of the Board, and (E) will not distribute to any stockholder any form of proxy for the annual meeting other than the form distributed by the Corporation; and (v) an undertaking that the Eligible Stockholder agrees to (A) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the stockholders or out of the information that the Eligible Stockholder provided to the Corporation, (B) comply with all other laws and regulations applicable to any solicitation in connection with the annual meeting, (C) provide facts, statements and other information in all communications with the Corporation and its stockholders that are or will be true and correct in all material respects and does not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading and (D) promptly provide the Corporation with copies of any solicitation or other communication with the Corporation’s stockholders relating to the annual meeting at which the Stockholder Nominee will be nominated that is exempt from filing with the SEC pursuant to applicable laws and regulations of the SEC. For purposes of this Section 3.13, the information, representations, undertakings and agreements required of the Eligible Stockholder must be made by each member of any group that seeks to qualify as an Eligible Stockholder.

(f)             The Eligible Stockholder may provide to the Secretary, at the time the information required by this Section 3.13 is provided, a written statement for inclusion in the Corporation’s proxy statement for the annual meeting, not to exceed five hundred (500) words, in support of the Stockholder Nominee’s candidacy (the “Statement”). Notwithstanding anything to the contrary contained in this Section 3.13, the Corporation may omit from its proxy materials any information or Statement that it, in good faith, believes would violate any applicable law or regulation.

(g)             In the event that any information or communications provided by the Eligible Stockholder or the Stockholder Nominee to the Corporation or its stockholders ceases to be true and correct in all material respects or omits a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible Stockholder or Stockholder Nominee, as the case may be, shall promptly notify the Secretary of the Corporation of any defect in such previously provided information and of the information that is required to correct any such defect.

(h)            The Corporation shall not be required to include, pursuant to this Section 3.13, a Stockholder Nominee in its proxy materials for any annual meeting of stockholders (i) for which the Secretary of the Corporation receives a notice that any stockholder has nominated any person for election to the Board pursuant to the advance notice requirements set forth in Section 2.03(d) of these Bylaws; (ii) if the Eligible Stockholder who has nominated such Stockholder Nominee has engaged in or is currently engaged in, or has been or is a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(1) under the Exchange Act in support of the election of any individual as a director at the annual meeting other than its Stockholder Nominee(s) or a nominee of the Board; (iii) who is not independent under the listing standards of the principal United States securities exchange upon which the common stock of the Corporation is listed, any applicable rules of the SEC and any publicly disclosed standards used by the Board in determining and disclosing independence of the Corporation’s Directors, in each case as determined by the Board; (iv) whose election as a member of the Board would cause the Corporation to be in violation of these Bylaws, the Certificate of Incorporation, the rules and listing standards of the principal U.S. securities exchanges upon which the common stock of the Corporation is traded, or any applicable state or federal law, rule or regulation; (v) who is or has been, within the past three (3) years, an officer or director of a Competitor; (vi) who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past ten (10) years; (vii) who is subject to any order of the type specified in Rule 506(d) of Regulation D under the Securities Act of 1933, as amended; (viii) who serves as a director at more than four (4) other public companies; (ix) if such Stockholder Nominee or the applicable Eligible Stockholder shall have provided information to the Corporation in respect to such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading, as determined by the Board or any committee thereof; or (x) the Eligible Stockholder or applicable Stockholder Nominee fails to comply with its obligations pursuant to this Section 3.13.

(i)              Notwithstanding anything to the contrary set forth herein, the Board or the chairperson of the meeting of stockholders shall declare a nomination by an Eligible Stockholder to be invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the Corporation, if (i) the Stockholder Nominee(s) and/or the applicable Eligible Stockholder shall have breached any of its or their obligations, agreements or representations under this Section 3.13, as determined by the Board or the chairperson of the meeting or (ii) the Eligible Stockholder (or a qualified representative thereof) does not appear at the meeting of stockholders to present any nomination pursuant to this Section 3.13.

(j)              Any Stockholder Nominee who is included in the Corporation’s proxy materials for a particular annual meeting of stockholders but either (i) withdraws from or becomes ineligible or unavailable for election at any such annual meeting, or (ii) is not elected to the Board and does not receive at least twenty-five percent (25%) of the votes cast in favor of the Stockholder Nominee’s election, will be ineligible to be a Stockholder Nominee pursuant to this Section 3.13 for the next two (2) annual meetings of stockholders.

Section 3.14            Directors’ Compensation. Any and all Directors may receive such reasonable compensation for their services as such, whether in the form of salary, a fixed fee for attendance at meetings or otherwise, with expenses, if any, as the Board may from time to time determine. Nothing herein contained shall be construed to preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor.

ARTICLE IV

COMMITTEES

Section 4.01            Constitution and Powers. The Board may, by resolution adopted by affirmative vote of a majority of the whole Board, appoint one (1) or more committees of the Board, which committees shall have such powers and duties as the Board shall properly determine. Unless otherwise provided by the Board, no such other committee of the Board shall be composed of fewer than three (3) Directors.

Section 4.02            Place of Meetings. Meetings of any committee of the Board may be held at any place, within or without the State of Delaware, from time to time designated by the Board or such committee. Committee members may participate in any regular or special meeting of any committee by means of conference telephone or other communications equipment pursuant to which all persons participating in the meeting of the committee can hear each other and such participation shall constitute presence in person at such meeting.

Section 4.03            Meetings; Notice and Waiver of Notice. Regular meetings of any committee of the Board shall be held at such times as may be determined by resolution either of the Board or of such committee and no notice shall be required for any regular meeting. Special meetings of any committee shall be called by the chairperson of the committee or by the Secretary or an Assistant Secretary upon request of any two (2) members thereof. Notice of the time and place of any special meetings of any committee shall be given in the same manner as notice of a special meeting of the Board, as set forth in Section 3.07 of ARTICLE III. Notice of any special meeting of a committee shall specify the date, time, and place (if any) of the special meeting and the means of participating in the meeting by remote communications (if any). Neither the business to be transacted at, nor the purpose of, any special meeting of any committee, need be specified in any notice or waiver of notice unless so required by the Certificate of Incorporation or these Bylaws. The provisions of Section 4.09 with respect to waiver of notice of meetings of the Board shall apply to meetings of any committee as well.

Section 4.04            Organization of Meetings. The designated chair of each committee shall preside at all meetings of such committee, except as otherwise expressly provided by the Board or the committee. The Secretary of the Corporation, except as otherwise expressly provided by the Board, shall act as secretary at all meetings of any committee and in his or her absence a temporary secretary shall be appointed by the chairperson of the meeting.

Section 4.05            Quorum and Manner of Acting. A majority of the members of any committee then in office 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. In the absence of a quorum, a majority of the members of any committee present, or, if two (2) or fewer members shall be present, any member of the committee present or the Secretary, may adjourn any meeting, from time to time, until a quorum is present. No notice of any adjourned meeting need be given other than by announcement at the meeting that is being adjourned. The provisions of Section 3.09 of ARTICLE III with respect to participation in a meeting of a committee of the Board and the provisions of Section 3.10 of ARTICLE III with respect to action taken by a committee of the Board without a meeting shall apply to participation in meetings of and action taken by any committee.

Section 4.06            Records. All committees shall keep minutes of their acts and proceedings, which shall be submitted at the next regular meeting of the Board unless sooner submitted at an organization or special meeting of the Board, and any action taken by the Board with respect thereto shall be entered in the minutes of the Board.

Section 4.07            Vacancies. Any vacancy among the appointed members or alternate members of any committee of the Board may be filled by affirmative vote of a majority of the whole Board.

Section 4.08            Members’ Compensation. Members of all committees may receive such reasonable compensation for their services as such, whether in the form of salary, a fixed fee for attendance at meetings or otherwise, with expenses, if any, as the Board may from time to time determine. Nothing herein contained shall be construed to preclude any member of any committee from serving the Corporation in any other capacity and receiving compensation therefor.

Section 4.09            Waiver of Notice. Whenever any notice is required to be given to any Director under the provisions of the DGCL, a waiver thereof in writing, signed by the person or persons entitled to such notice, or a waiver thereof by electronic transmission by the person or persons entitled to such notice, whether before or after the time when such notice was required, shall be deemed equivalent to the giving of such notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of such meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the Board or committee thereof need be specified in any waiver of notice of such meeting.

ARTICLE V

OFFICERS

Section 5.01            Officers; Election or Appointment. The Board shall take such action as may be necessary from time to time to ensure that the Corporation has such officers as are necessary, under this Section 5.01 and the DGCL as currently in effect or as the same may hereafter be amended, to enable it to conduct the affairs of the Corporation.

Section 5.02            Term of Office; Resignation; Removal; Vacancies. Unless otherwise provided in the resolution of the Board electing or authorizing the appointment of any officer, each officer shall hold office until his or her successor is elected or appointed and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice or notice by electronic transmission to the Board, the Chief Executive Officer, or to such person or persons as the Board may designate. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective, irrespective of whether the resignation is tendered subject to such acceptance. The Board may remove any officer with or without cause at any time. Any officer authorized by the Board to appoint a person to hold an office of the Corporation may also remove such person from such office with or without cause at any time, unless otherwise provided in the resolution of the Board providing such authorization. Any such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation, but the election or appointment of an officer shall not of itself create contractual rights. Any vacancy occurring in any office of the Corporation by death, resignation, removal, disqualification or otherwise may be filled by the Board at any regular or special meeting or by an officer authorized by the Board to appoint a person to hold such office.

Section 5.03            Powers and Duties. The officers of the Corporation shall have such powers and duties in the management of the Corporation as shall be stated in these Bylaws or in a resolution of the Board that is not inconsistent with these Bylaws and, to the extent not so stated, as generally pertain to their respective offices, subject to the control of the Board. A Secretary or such other officer appointed to do so by the Board shall have the duty to record the proceedings of the meetings of the stockholders, the Board and any committees in a book to be kept for that purpose. The Board may require any officer, agent or employee to give security for the faithful performance of his or her duties.

Section 5.04            Executive Management Committee. There shall be an Executive Management Committee of the Corporation, the members of which shall consist of the Chief Executive Officer, the President, the Chief Financial Officer and such other officers of the Corporation as the Board may determine from time to time. The Executive Management Committee shall have and may exercise all the powers and authority in the management of the business and affairs of the Corporation, insofar as it pertains to capital expenditures and acquisitions, as the Board may determine.

ARTICLE VI

SHARES AND TRANSFERS OF SHARES

Section 6.01            Stock Certificates; Uncertificated Shares.

(a)            The shares of stock in the Corporation shall be represented by certificates or uncertificated, provided that the Board of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be certificated shares. Any such resolution shall not apply to any such shares represented by a certificate theretofore issued until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution or resolutions by the Board of the Corporation, each certificate shall be signed by the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, certifying the number of certificated 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 cease to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issuance. Certificates representing shares of stock of the Corporation may bear such legends regarding restrictions on transfer or other matters as any officer or officers of the Corporation may determine to be appropriate and lawful.

(b)            If the Corporation is authorized to issue more than one (1) class of stock or more than one (1) 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 or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock, provided that, except as otherwise required by law, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate that 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 such class or series of stock and the qualifications, limitations or restrictions of such preferences and/or rights. Within a reasonable time after the issuance or transfer of uncertificated shares of any class or series of stock, the Corporation shall send to the registered owner thereof a written notice containing the information required by law to be set forth or stated on certificates representing shares of such class or series or 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 such class or series and the qualifications, limitations or restrictions of such preferences and/or rights.

(c)             Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.

Section 6.02            Transfers of Stock. Subject to any restrictions on transfer and unless otherwise provided by the Board, shares of stock may be transferred only on the books of the Corporation, if such shares are certificated, by the surrender to the Corporation or its transfer agent of the certificate therefore properly endorsed or accompanied by a written assignment or power of attorney properly executed, with transfer stamps (if necessary) affixed, or upon proper instructions from the holder of uncertificated shares, in each case with such proof of the authenticity of signature as the Corporation or its transfer agent may reasonably require.

Section 6.03            Lost Certificates. In case any certificate of stock shall be lost, stolen or destroyed, the Board, in its discretion, or any officer or officers thereunto duly authorized by the Board, may authorize the issue of a substitute certificate of stock or uncertificated shares in place of the certificate so lost, stolen or destroyed; provided, however, that, in each such case, the applicant for a substitute certificate or uncertificated shares shall furnish evidence to the Corporation, which it determines in its discretion is satisfactory, of the loss, theft or destruction of such certificate and of the ownership thereof, and also such security or indemnity as may be required by it.

Section 6.04            Determination of Holders of Record for Certain Purposes. In order to determine the stockholders or other holders of securities 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 capital stock or other securities or for the purpose of any other lawful action, the Board may fix, in advance, a record date, not more than sixty (60) days prior to the date of payment of such dividend or other distribution or allotment of such rights or the date when any such rights in respect of any change, conversion or exchange of stock or securities may be exercised, and in such case only holders of record on the date so fixed shall be entitled to receive payment of such dividend or other distribution or to receive such allotment of rights, or to exercise such rights, notwithstanding any transfer of any stock or other securities on the books of the Corporation after any such record date fixed as aforesaid. No record date shall precede the date on which the Board establishes such record date.

ARTICLE VII

CORPORATE SEAL

Section 7.01            Seal. The Board may provide a suitable seal containing the name of the Corporation.

Section 7.02            Affixing and Attesting. The seal of the Corporation shall be in the custody of the Secretary, who shall have power to affix it to the proper corporate instruments and documents, and who shall attest it. In his or her absence, it may be affixed and attested by an Assistant Secretary, or by the Treasurer or an Assistant Treasurer or by any other person or persons as may be designated by the Board.

ARTICLE VIII

Emergency Bylaws

Section 8.01            Emergency Bylaws. This Article VIII shall be operative during any Emergency, notwithstanding any different or conflicting provision of the preceding Sections of these Bylaws or in the Certificate of Incorporation. To the extent not inconsistent with the provisions of this Article VIII, the preceding Sections of these Bylaws and the provisions of the Certificate of Incorporation shall remain in effect during such Emergency, and upon termination of such Emergency, the provisions of this Article VIII shall cease to be operative unless and until another Emergency shall occur.

Section 8.02            Meetings; Notice. During any Emergency, a meeting of the Board or any committee thereof may be called by any member of the Board, or such committee, or by the Chair, the Chief Executive Officer, the President or the Secretary of the Corporation. Notice of the place, date and time of the meeting shall be given by any available means of communication by the person calling the meeting to such of the Directors or committee members and Designated Officers as, in the judgment of the person calling the meeting, it may be feasible to reach. Such notice shall be given at such time in advance of the meeting as, in the judgment of the person calling the meeting, circumstances permit.

Section 8.03            Quorum. At any meeting of the Board called in accordance with Section 3.09 above, the presence or participation of one Director shall constitute a quorum for the transaction of business, and at any meeting of any committee of the Board called in accordance with Section 4.05 above, the presence or participation of one committee member shall constitute a quorum for the transaction of business. In the event that no directors are able to attend a meeting of the Board or any committee thereof, then the Designated Officers in attendance shall serve as Directors, or committee members, as the case may be, for the meeting, without any additional quorum requirement and will have full powers to act as Directors, or committee members, as the case may be, of the Corporation.

Section 8.04            Liability. No officer, Director or employee of the Corporation acting in accordance with the provisions of this Article VIII shall be liable except for willful misconduct.

ARTICLE IX

MISCELLANEOUS

Section 9.01            Fiscal Year. The fiscal year of the Corporation shall end on the thirtieth (30^th) day of September of each year unless changed by resolution of the Board.

Section 9.02            Signatures on Negotiable Instruments. All bills, notes, checks or other instruments for the payment of money shall be signed or countersigned by such officers or agents and in such manner as, from time to time, may be prescribed by resolution (whether general or special) of the Board, or may be prescribed by any officer or officers, or any officer and agent jointly, thereunto duly authorized by the Board.

Section 9.03            Execution of Proxies. The President, or, in his or her absence or his or her disability, any Vice President, may authorize, from time to time, the execution and issuance of proxies to vote shares of stock or other securities of other corporations held of record by the Corporation and the execution of consents to action taken or to be taken by any such corporation. All such proxies and consents, unless otherwise authorized by the Board, shall be signed in the name of the Corporation by the Chairperson, the President or any Vice President.

Section 9.04            References to Article and Section Numbers and to the Bylaws and the Certificate of Incorporation. Whenever in these Bylaws reference is made to an Article or Section number, such reference is to the number of an Article or Section of these Bylaws. Whenever in these Bylaws reference is made to the Bylaws, such reference is to these Bylaws of the Corporation, as amended, and whenever reference is made to the Certificate of Incorporation, such reference is to the Certificate of Incorporation of the Corporation, as amended, including all documents deemed by the DGCL to constitute a part thereof.

Section 9.05            References to the DGCL and Exchange Act. Whenever in the Bylaws reference is made to the DGCL and any section thereunder, the Exchange Act and the rules and regulations promulgated thereunder, as well as any section or schedule thereunder, such references include any corresponding successor law, section, rule, form, item, instructions, regulation, provision or schedule.

Section 9.06            Forum for Adjudication of Disputes.

(a)             Unless the Corporation consents in writing to the selection of an alternative forum, (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former Director, officer or other employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Certificate of Incorporation or these Bylaws (in each case, as they may be amended from time to time) or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, or (iv) any action asserting a claim governed by the internal affairs doctrine of the law of the State of Delaware shall, to the fullest extent permitted by law, be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, the federal district court of the District of Delaware.

(b)            Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended.

(c)            To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 9.06. If any provision of this Section 9.06 shall be held to be invalid, illegal or unenforceable as applied to any person, entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provision in any other circumstance and of the remaining provisions of this Section 9.06 and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.

ARTICLE X

AMENDMENTS

Section 10.01          Amendments. These Bylaws may be adopted, altered, amended or repealed, at any annual or special meeting of stockholders, duly called and upon proper notice thereof, by the affirmative vote of a majority of the votes cast for and against the adoption, alteration, amendment or repeal by the holders of shares of stock present in person or represented by proxy at the meeting and entitled to vote on the adoption, alteration, amendment or repeal or by the Board at any valid meeting by the affirmative vote of a majority of the whole Board, provided that in the case of a special meeting of stockholders, notice of such proposed adoption, alteration, amendment or repeal must be included in the notice of meeting.

ARTICLE XI

DEFINITIONS

As used in these Bylaws, the following terms have the meanings specified in this ARTICLE XI:

“Acceptable Delivery Method” means delivery in writing to the Secretary of the Corporation by registered mail addressed to the Secretary at the principal executive offices of the Corporation, return receipt requested.

An “Affiliate” of a person shall mean another person that, directly or indirectly through one (1) or more intermediaries, controls, is controlled by or is under common control with such person.

“affiliate” has the meaning set forth in Rule 12b-2 under the Exchange Act.

An “Associate” of a person shall mean (i) any corporation or organization (other than a majority-owned subsidiary of such person) of which such person is an officer or partner or is, directly or indirectly, the beneficial owner of ten percent (10%) or more of any class of equity securities; (ii) any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same home as such person or who is a Director or officer of the Corporation or any of its parents or subsidiaries.

“associate” has the meaning set forth in Rule 12b-2 under the Exchange Act.

“beneficially owned” (and its correlative terms) has the meaning provided in Rules 13d-3 and 13d-5 under the Exchange Act.

“Chair” means the Chair of the Corporation’s Board of Directors.

“Competitor” means any entity that provides pharmaceutical sourcing and distribution services or other products or services that compete with or are alternatives to the services provided by the Corporation or any affiliate thereof.

“Corporation Securities” means any capital stock or other securities of the Corporation.

“Derivative Instrument” means any derivative instruments, profit interests, options, warrants, convertible securities, stock appreciation or other rights with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any Corporation Securities or the voting rights thereof or with a value derived in whole or in part from the value of any Corporation Securities or any other contract, derivative, swap or other transaction or series of transactions designed to produce economic benefits and risks that correspond substantially to the ownership of any Corporation Securities, in each case, whether or not such instrument, contract or right shall be subject to settlement in the underlying Corporation Security.

“Designated Officer” means an officer identified on a numbered list of officers of the Corporation who shall be deemed to be, in the order in which they appear on the list up until a quorum is obtained, Directors, or members of a committee of the Board, as the case may be, for purposes of obtaining a quorum during an Emergency, if a quorum of Directors or committee members, as the case may be, cannot otherwise be obtained during such Emergency, which officers have been designated by the Board from time to time but in any event prior to such time or times as an Emergency may have occurred.

“DGCL” means the General Corporation Law of the State of Delaware.

“electronic mail” means an electronic transmission directed to a unique electronic mail address (which electronic mail shall be deemed to include any files attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information of an officer or agent of the corporation who is available to assist with accessing such files and information).

“electronic mail address” means a destination, commonly expressed as a string of characters, consisting of a unique username or mailbox (commonly referred to as the “local part” of the address) and a reference to an internet domain (commonly referred to as the “domain part” of the address), whether or not displayed, to which electronic mail can be sent or delivered.

“electronic transmission” means any form of communication, not directly involving the physical transmission of paper, including the use of, or participation in, one (1) or more electronic networks or databases (including one (1) or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

“Emergency” means any emergency, disaster or catastrophe, as referred to in Section 110 of the DGCL or other similar emergency condition (including a pandemic), as a result of which a quorum of the Board or a committee thereof cannot readily be convened for action.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Net Long Beneficial Ownership” (and its correlative terms), when used to describe the nature of a person’s ownership of common stock of the Corporation, shall mean the shares of stock of the Corporation that such person or, if such person is a nominee, custodian or other agent that is holding the shares on behalf of another person (the “beneficial owner”), that such beneficial owner would then be deemed to own pursuant to Rule 200(b) under the Exchange Act (as such Rule is in effect on the date on which these Bylaws are first amended to include Section 2.02(b)), excluding, at any time, any shares as to which such stockholder or beneficial owner, as the case may be, does not then have the right to vote or direct the vote and excluding, at any time, any shares as to which such person or beneficial owner (or any Affiliate or Associate of such person or beneficial owner), as the case may be, had directly or indirectly entered into (or caused to be entered into) and not yet terminated a derivative or other agreement, arrangement or understanding that hedges or transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of such shares, and further subtracting from any person’s ownership of shares at any time such person’s (and such person’s Affiliates’ and Associates’) “short position” (as defined pursuant to Rule 14e-4(a) under the Exchange Act) (as such Rule is in effect on the date on which these Bylaws are first amended to include Section 2.02(b)), all as the Board shall determine in good faith. The Board shall determine in good faith whether all requirements set forth in Section 2.02(b) have been satisfied and such determination shall be binding on the Corporation and its stockholders.

“Proposed Nominee” means any and each person whom the Proposing Stockholder proposes to nominate for election or re-election as a director.

“Proposing Stockholder” means any stockholder proposing business to be brought before a meeting of stockholders pursuant to Section 2.02 or Section 2.03(c), or any stockholder proposing nominations pursuant to Section 2.03(d).

“Qualified Representative” of a stockholder means a person who is duly authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to the Secretary to act for such stockholder as proxy at a specified meeting of stockholders. The Qualified Representative must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

“Questionnaire” means, as to each person whom a Proposing Stockholder proposes to nominate for election or reelection to the Board, a director’s and officers’ questionnaire in the form provided by the Corporation pursuant to Section 2.03(d)(iii)(A)(4) and signed by such Proposed Nominee.

“Requesting Stockholder” means any stockholder of record that makes a Special Meeting Request.

“Short Interest” shall mean any agreement, arrangement, understanding or relationship (including any repurchase or so called “stock borrowing” agreement or arrangement) the effect or intent of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of any Corporation Securities or manage risk with respect to any Corporation Securities, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease in the price or value of any Corporation Securities.

A “Stockholder Associated Person” means, as to any Proposing Stockholder (i) any person who is a member of a “group” (as such term is used in Rule 13d-5 of the Exchange Act) with such stockholder, (ii) any beneficial owner of shares of capital stock of the Corporation on whose behalf the request, proposal or nomination is being made (other than a stockholder that is a depositary), (iii) any affiliate or associate of such stockholder or any such beneficial owner, and (iv) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with such stockholder, beneficial owner or any Stockholder Associated Person in respect of any requests, proposals or nominations, as applicable.

EXHIBIT 10.1

INDEMNIFICATION AGREEMENT

This Indemnification Agreement, effective as of [●], 2024 (this “Agreement”), is made by and between Cencora, Inc., a Delaware corporation (the “Company”), and [●] (“Indemnitee”).

WHEREAS, the Indemnitee is currently serving or will serve as [an officer] / [a director] and in such capacity has rendered or will render valuable services to the Company;

WHEREAS, it is common for publicly traded companies to enter into indemnification agreements with their directors and officers in order to induce and encourage highly experienced and capable persons such as the Indemnitee to serve or to continue to serve, as applicable, the Company, and the Company’s Board of Directors (the “Board”) has determined, after due consideration and investigation of the terms and provisions of this Agreement and the various other alternatives available to the Company and the Indemnitee in lieu hereof, that this Agreement is not only reasonable and prudent, but necessary to promote and ensure the best interests of the Company and its stockholders; and

WHEREAS, in recognition of the need to provide Indemnitee with substantial protection against personal liability, in order to procure Indemnitee’s service or continued service, as applicable, to the Company and to enhance Indemnitee’s ability to serve the Company in an effective manner, and in order to provide such protection pursuant to express contract rights (intended to be enforceable irrespective of, among other things, any amendment to the Company’s certificate of incorporation or bylaws (collectively, the “Constituent Documents”), any change in the composition of the Board or any change-in-control or business combination transaction relating to the Company), the Company wishes to provide in this Agreement for the indemnification of and the advancement of Expenses to Indemnitee as set forth in this Agreement and for the continued coverage of Indemnitee under the Company’s directors’ and officers’ liability insurance policies.

AGREEMENT:

NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service or continued service, as applicable, of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve or to continue to serve, as applicable, the Company and the Indemnitee hereby agree as follows:

1.            Certain Definitions. In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement with initial capital letters:

(a)            “Beneficial Owner” has the meaning given to the term “beneficial owner” in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

(b)            “Change in Control” means the occurrence after the date of this Agreement of any of the following events:

(i)            any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 35% of the voting power of the then outstanding securities of the Company, and such person owns more aggregate voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors than any other person;

(ii)           the consummation of (x) a merger or consolidation of the Company with another corporation where the stockholders of the Company, immediately prior to the merger or consolidation, will not beneficially own, immediately after the merger or consolidation, shares entitling such stockholders to 50% or more of all votes to which all stockholders of the surviving corporation would be entitled in the election of directors (without consideration of the rights of any class of stock to elect directors by a separate class vote), (y) a sale or other disposition of all or substantially all of the assets of the Company, or (z) a liquidation or dissolution of the Company; or

(iii)          during a period of twelve (12) consecutive months (not including any period prior to the execution of this Agreement), Incumbent Directors cease for any reason to constitute at least a majority of the members of the Board.

(c)           “Claim” means (i) any threatened, asserted, pending or completed claim, counterclaim, cross claim, demand, action, suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or other, and whether made pursuant to federal, state or other law; and (ii) any inquiry, hearing or investigation, whether made, instituted or conducted by the Company or any other party, including without limitation any federal, state or other governmental entity, that Indemnitee determines might lead to the institution of any such claim, demand, action, suit or proceeding. A Claim shall include any appeals therefrom.

(d)           “Disinterested Director” means a director of the Company who is not and was not a party to the Claim in respect of which indemnification is sought by Indemnitee.

(e)           “Expenses” shall include any and all expenses, including all reasonable attorneys' fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local or foreign taxes (including ERISA excise taxes and penalties) imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, and all other disbursements, obligations or expenses of the types customarily incurred in connection with, or as a result of, prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a deponent or witness in, or otherwise participating in, any Claim. Expenses also shall include (i) Expenses incurred in connection with any appeal resulting from any Indemnifiable Claim, including, without limitation, the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, (ii) Expenses incurred in connection with recovery under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether Indemnitee is ultimately determined to be entitled to such indemnification, advancement or Expenses or insurance recovery, as the case may be. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.

(f)            “Incumbent Directors” means the individuals who, as of the date hereof, are directors of the Company and any individual becoming a director subsequent to the date hereof whose election, nomination for election by the Company’s stockholders, or appointment was approved by a vote of at least two-thirds of the then still in office directors who were either directors as of the date hereof or whose election or nomination for election was previously so approved (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination).

(g)            “Indemnifiable Claim” means any Claim based upon, arising out of or resulting from any event or occurrence, whether occurring before, on or after the date of this Agreement, related to the fact that Indemnitee is or was a director, officer, employee or agent of the Company or is or was serving at the request of the Company as a director, officer, employee, member, manager, trustee or agent of any other corporation, limited liability company, partnership, joint venture, trust or other entity or enterprise (collectively with the Company, “Enterprise”), or by reason of an action or inaction by Indemnitee in any such capacity (whether or not serving in such capacity at the time any Loss is incurred for which indemnification can be provided under this Agreement).

(h)           “Indemnifiable Losses” means any and all Losses relating to, arising out of or resulting from any Indemnifiable Claim.

(i)            “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent or performed services for: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Indemnifiable Claim giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “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.

(j)            “Losses” means any and all Expenses, damages, losses, liabilities, judgments, fines, penalties (whether civil, criminal or other), any federal, state, local or foreign taxes (including ERISA excise taxes and penalties) imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, and amounts paid in settlement, including without limitation all interest, assessments and other charges, paid or payable in connection with or in respect of any Claim.

(k)           “Person” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, governmental entity or other entity and includes the meaning set forth in Sections 13(d) and 14(d) of the Exchange Act.

(l)            “Subsidiary” means an entity in which the Company directly or indirectly Beneficially Owns 50% or more of the outstanding Voting Stock.

(m)          “Voting Stock” means securities entitled to vote generally in the election of directors (or similar governing bodies).

2.            Indemnification Obligation. Subject to Sections 7 and 15, the Company shall indemnify, defend and hold harmless Indemnitee, to the fullest extent permitted by the laws of the State of Delaware in effect on the date hereof or as such laws may from time to time hereafter be amended to increase the scope of such permitted indemnification, against any and all Indemnifiable Losses actually and reasonably incurred in connection with any Indemnifiable Claim, including, without limitation, Indemnifiable Claims brought by or in the right of the Company, Indemnifiable Claims brought by third parties, and Indemnifiable Claims in which the Indemnitee is solely a witness.

3.            Advancement of Expenses.

(a)           Subject to Section 15, Indemnitee shall have the right to advancement by the Company prior to the final disposition of any Indemnifiable Claim, by final adjudication to which there are no further rights of appeal, of any and all Expenses actually and reasonably paid or incurred by Indemnitee in connection with any Indemnifiable Claim. Indemnitee’s right to such advancement is not subject to the satisfaction of any standard of conduct. Advances shall be unsecured and interest free and shall be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.

(b)           Without limiting the generality or effect of the foregoing, within thirty (30) days after any request by Indemnitee, the Company shall, in accordance with such request, (i) pay such Expenses on behalf of Indemnitee, (ii) advance to Indemnitee funds in an amount sufficient to pay such Expenses, or (iii) reimburse Indemnitee for such Expenses. In connection with any such payment, advancement or reimbursement, Indemnitee shall not be required to provide any documentation or information to the extent that the provision thereof would undermine or otherwise jeopardize attorney-client privilege. Indemnitee hereby undertakes to repay to the Company any Expense advanced pursuant to this Section 3 if and to the extent that it shall ultimately be determined by final disposition of such Indemnifiable Claim from which there is no further right to appeal that Indemnitee is not entitled to be indemnified under this Agreement or otherwise.

4.            Indemnification for Additional Expenses. The Company shall also indemnify against and, if requested by Indemnitee, shall advance to Indemnitee, subject to and in accordance with Section 3, within ten business days of such request, any Expenses actually and reasonably paid or incurred by Indemnitee in connection with any Claim by Indemnitee for (a) indemnification or reimbursement or advance payment of Expenses by the Company under any provision of this Agreement, or under any other agreement or provision of the Constituent Documents now or hereafter in effect relating to Indemnifiable Claims, and/or (b) recovery under any directors’ and officers’ liability insurance policies maintained by the Company, regardless in each case of whether Indemnitee ultimately is determined to be entitled to such indemnification, reimbursement, advance or insurance recovery, as the case may be. Indemnitee shall be required to reimburse the Company in the event that a final judicial determination is made that such action brought by Indemnitee was frivolous or not made in good faith.

5.            Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Indemnifiable Loss but not for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

6.            Procedure for Notification. To obtain indemnification under this Agreement in respect of an Indemnifiable Claim or advancement of Expenses, Indemnitee shall submit to the Company a written notice as soon as practicable of any Claim which could relate to an Indemnifiable Claim or for which the Indemnitee could seek advancement of Expenses hereunder, including a brief description (based upon information then available to Indemnitee) of the nature of, and the facts underlying, such Claim. If, at the time of the receipt of such request, the Company has directors’ and officers’ liability insurance in effect under which coverage for such Indemnifiable Claim is potentially available, the Company shall give prompt written notice of such Indemnifiable Claim to the applicable insurers in accordance with the procedures set forth and the time periods specified in the applicable policies. The Company shall provide to Indemnitee a copy of such notice delivered to the applicable insurers, and copies of all subsequent correspondence between the Company and such insurers regarding the Indemnifiable Claim, in each case substantially concurrently with the delivery or receipt thereof by the Company. The failure by Indemnitee to timely notify the Company of any Indemnifiable Claim shall not relieve the Company from any liability hereunder unless, and only to the extent that, the Company is materially prejudiced by such failure.

7.            Application and Determination of Right to Indemnification.

(a)            In order to obtain indemnification pursuant to this Agreement, Indemnitee shall submit to the Company a written request therefor (following the final disposition of the applicable Indemnifiable Claim), including in such request, except to the extent previously provided to the Company in connection with a request or requests for advancement of expenses pursuant to Section 3 hereof, a statement or statements reasonably evidencing all Losses incurred or paid by or on behalf of the Indemnitee and for which indemnification is requested and such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. Indemnification shall be made insofar as the Company determines Indemnitee is entitled to indemnification in accordance with this Section 7.

(b)           To the extent that Indemnitee shall have been successful on the merits or otherwise in defense of any Indemnifiable Claim or any portion thereof or in defense of any issue or matter therein, including without limitation dismissal without prejudice, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred relating to such Indemnifiable Claim in accordance with Section 2 and no Standard of Conduct Determination (as defined in Section 7(d)) shall be required. If the Indemnitee is not wholly successful in defending any Indemnifiable Claim but is successful, on the merits or otherwise, in defending one or more but less than all claims, issues or matters relating to any such Indemnifiable Claim, including dismissal without prejudice of certain claims, issues or matters, the Company shall indemnify the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee or on the Indemnitee’s behalf in defending each such successfully resolved claim, issue or matter, and no Standard of Conduct Determination (as defined in Section 7(d)) shall be required.

(c)            To the extent that Indemnitee’s involvement in an Indemnifiable Claim is to prepare to serve and serve as a witness, and not as a party, the Indemnitee shall be indemnified against all Expenses incurred in connection therewith to the fullest extent permitted by law and no Standard of Conduct Determination (as defined in Section 7(d)) shall be required.

(d)            To the extent that the provisions of Section 7(b) and Section 7(c) are inapplicable to an Indemnifiable Claim that shall have been finally disposed of, any determination of whether Indemnitee has satisfied any applicable standard of conduct under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Indemnifiable Losses relating to such Indemnifiable Claim (a “Standard of Conduct Determination”) shall be made as follows: (i) unless a Change in Control has occurred, (A) by a majority vote of the Disinterested Directors, even if less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even if less than a quorum of the Board, or (C) if there are no such Disinterested Directors, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee; and (ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within 10 business days of such request, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in cooperating with the person or persons making such Standard of Conduct Determination.

(e)            The Company shall use its reasonable best efforts to cause any Standard of Conduct Determination required under Section 7(d) to be made as promptly as practicable. If the person or persons determined under Section 7 to make the Standard of Conduct Determination shall not have made a determination within 45 days after the later of (A) receipt by the Company of written notice from Indemnitee advising the Company of the final disposition of the applicable Claim (the date of such receipt being the “Notification Date”) and (B) the selection of an Independent Counsel, if such determination is to be made by Independent Counsel, then Indemnitee shall, to the fullest extent permitted by law, be deemed to have satisfied the applicable standard of conduct; provided that such 45-day period may be extended for a reasonable time, not to exceed an additional 45 days, if the person or persons making such determination in good faith requires such additional time to obtain or evaluate information relating thereto.

(f)            If (i) Indemnitee shall be entitled to indemnification pursuant to Section 7(b) or (c), (ii) no determination of whether Indemnitee has satisfied any applicable standard of conduct under Delaware law is a legally required condition to indemnification of Indemnitee hereunder against any Indemnifiable Losses, or (iii) Indemnitee has been determined or deemed pursuant to Section 7(d) or (e) to have satisfied any applicable standard of conduct under Delaware law which is a legally required condition to indemnification of Indemnitee, then the Company shall pay to Indemnitee, within 10 business days after the later of (x) the Notification Date and (y) the earliest date on which the applicable criterion specified in clause (i), (ii) or (iii) is satisfied, an amount equal to such Indemnifiable Losses. If it is determined that the Indemnitee is not entitled to indemnification, then the written notice to the Indemnitee (or, if such determination has been made by Independent Counsel in a written opinion, the copy of such written opinion delivered to the Indemnitee) shall disclose the basis upon which such determination is based.

(g)           If a Standard of Conduct Determination is to be made by Independent Counsel pursuant to Section 7(d)(i), the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected. If a Standard of Conduct Determination is to be made by Independent Counsel pursuant to Section 7(d)(ii), the Independent Counsel shall be selected by Indemnitee, and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either case, Indemnitee or the Company, as applicable, may, within five business days after receiving written notice of selection from the other, deliver to the other a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not satisfy the criteria set forth in the definition of “Independent Counsel” in Section 1(i), and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person or firm so selected shall act as Independent Counsel. If such written objection is properly and timely made and substantiated, (i) the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit and (ii) the non-objecting party may, at its option, select an alternative Independent Counsel and give written notice to the other party advising such other party of the identity of the alternative Independent Counsel so selected, in which case the provisions of the two immediately preceding sentences and clause (i) of this sentence shall apply to such subsequent selection and notice. If applicable, the provisions of clause (ii) of the immediately preceding sentence shall apply to successive alternative selections. If no Independent Counsel that is permitted under the foregoing provisions of this Section 7(g) to make the Standard of Conduct Determination shall have been selected within 30 days after the Company gives its initial notice pursuant to the first sentence of this Section 7(g) or Indemnitee gives its initial notice pursuant to the second sentence of this Section 7(g), as the case may be, either the Company or Indemnitee may petition the Court of Chancery of the State of Delaware (the “Delaware Court”) for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Delaware Court or by such other person as the Delaware Court shall designate, and the person or firm with respect to whom all objections are so resolved or the person or firm so appointed will act as Independent Counsel. In all events, the Company shall pay all of the reasonable fees and expenses of the Independent Counsel incurred in connection with the Independent Counsel’s determination pursuant to Section 7(d).

8.            Presumption of Entitlement and Reliance as a Safe Harbor.

(a)            In making any Standard of Conduct Determination, the Person or Persons making such determination shall, to the fullest extent permitted by law, presume that Indemnitee has satisfied the applicable standard of conduct, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any Person or Persons of any determination contrary to that presumption. Any Standard of Conduct Determination that is adverse to Indemnitee may be challenged by the Indemnitee in the Delaware Court. No determination by the Company (including by its directors or any Independent Counsel) that Indemnitee has not satisfied any applicable standard of conduct shall be a defense to any Claim by Indemnitee for indemnification or reimbursement or advance payment of Expenses by the Company hereunder or create a presumption that Indemnitee has not met any applicable standard of conduct.

(b)            For purposes of this Agreement, and without creating any presumption as to a lack of good faith if the following circumstances do not exist, Indemnitee shall be deemed to have acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company if Indemnitee’s actions or omissions to act are taken in good faith reliance upon the records of the Company, including its financial statements, or upon information, opinions, reports or statements furnished to Indemnitee by the officers or employees of the Company or any of its subsidiaries in the course of their duties, or by committees of the Board or by any other Person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company. In addition, the knowledge and/or actions, or failures to act, of any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnity hereunder.

9.            No Other Presumption. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, will not create a presumption that Indemnitee did not meet any applicable standard of conduct or that indemnification hereunder is otherwise not permitted.

10.          Non-Exclusivity. The rights of Indemnitee hereunder will be in addition to any other rights Indemnitee may have under the Constituent Documents, or the General Corporation Law of the State of Delaware, any other contract or otherwise (collectively, “Other Indemnity Provisions”); provided, however, that (a) to the extent that Indemnitee otherwise would have any greater right to indemnification under any Other Indemnity Provision, Indemnitee will be deemed to have such greater right hereunder and (b) to the extent that any change is made to any Other Indemnity Provision which permits any greater right to indemnification than that provided under this Agreement as of the date hereof, Indemnitee will be deemed to have such greater right hereunder. The Company will not adopt any amendment to any of the Constituent Documents the effect of which would be to deny, diminish or encumber Indemnitee’s right to indemnification under this Agreement or any Other Indemnity Provision.

11.          Liability Insurance and Funding. For the duration of Indemnitee’s service to the Company, and thereafter for so long as Indemnitee shall be subject to any pending Indemnifiable Claim, the Company shall use commercially reasonable efforts (taking into account the scope and amount of coverage available relative to the cost thereof) to cause to be maintained in effect policies of directors’ and officers’ liability insurance providing coverage for directors and/or officers of the Company that is at least substantially comparable in scope and amount to that provided by the Company’s current policies of directors’ and officers’ liability insurance. Upon receiving written request, the Company shall provide Indemnitee with a copy of all directors’ and officers’ liability insurance applications, binders, policies, declarations, endorsements and other related materials, and shall provide Indemnitee with a reasonable opportunity to review and comment on the same. Without limiting the generality or effect of the two immediately preceding sentences, the Company shall not discontinue or significantly reduce the scope or amount of coverage from one policy period to the next (i) without the prior approval thereof by a majority vote of the Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such discontinuation or significant reduction in the scope or amount of coverage is proposed there are no Incumbent Directors, without the prior written consent of Indemnitee (which consent shall not be unreasonably withheld or delayed). In all policies of directors’ and officers’ liability insurance obtained by the Company, Indemnitee shall be named as an insured in such a manner as to provide Indemnitee the same rights and benefits, subject to the same limitations, as are accorded to the Company’s directors and officers most favorably insured by such policy.

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 related rights of recovery of Indemnitee against other Persons (other than Indemnitee’s successors), including any Enterprise referred to in the definition of “Indemnifiable Claim” in Section 1(g). Indemnitee shall execute all papers reasonably required to evidence 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 to Indemnitee in respect of any Indemnifiable Losses to the extent Indemnitee has otherwise actually received payment (net of Expenses incurred in connection therewith) under any insurance policy, the Constituent Documents and Other Indemnity Provisions or otherwise.

14.          Defense of Claims.

(a)            The Company shall be entitled to participate in the defense of any Indemnifiable Claim at its own expense and, except as otherwise provided below, to the extent the Company so wishes, it may assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee upon the delivery to the Indemnitee of written notice of its election to do so, and the Indemnitee shall cooperate with the Company in such defense as reasonably requested by the Company.

(b)           After notice from the Company to Indemnitee of its election to assume the defense of any such Indemnifiable Claim (but subject to such approval of counsel by the Indemnitee and the retention of such counsel by the Company), the Company shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently directly incurred by Indemnitee in connection with Indemnitee’s defense of such Indemnifiable Claim except as otherwise provided below. If Indemnitee has reasonably determined, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and that there may be one or more legal defenses available to Indemnitee that are different from or in addition to those available to the Company, or (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense; provided that any counsel chosen by Indemnitee shall agree to comply with the Company’s outside counsel guidelines, as in effect at the time of engagement of such counsel, with respect to any matter for which indemnification is sought under this Agreement. The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent; provided, however, that if a Change in Control has occurred, the Company shall be liable for indemnification of the Indemnitee for amounts paid in settlement if an Independent Counsel has approved the settlement. The Company shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim which the Indemnitee is or could have been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

15.          Exclusions from Indemnification. Notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated to:

(a)            Indemnify or advance funds to Indemnitee for Expenses or Losses with respect to proceedings (or any part thereof) initiated by Indemnitee, including any proceedings against the Company or its directors, officers, employees or other indemnitees or by way of defense of any counterclaim, cross-claim, affirmative defense, or like claim of the Company in such proceedings (or part thereof), except:

(i)            proceedings referenced in Section 4 above (unless a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceedings was not made in good faith or was frivolous); or

(ii)           where the Board has consented to the initiation of such proceedings.

(b)           Indemnify Indemnitee if a final decision by a court of competent jurisdiction determines that such indemnification is prohibited by applicable law.

(c)            Indemnify Indemnitee for any Expenses, judgments, fines, expenses or penalties sustained in any proceeding for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange Act or similar provisions of any federal, state or local statute or regulation.

(d)            Indemnify or advance funds to Indemnitee for (1) Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the Sarbanes-Oxley Act of 2002 in connection with an accounting restatement of the Company or the payment to the Company of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act of 2002) or (2) the loss of any erroneously awarded compensation recovered pursuant to the Company’s Dodd-Frank Compensation Recoupment Policy or successor policy adopted pursuant to Section 303A.14 of the New York Stock Exchange Listed Company Manual.

(e)            Indemnify Indemnitee on account of any proceeding with respect to a final judgment not subject to further appeal that Indemnitee’s conduct was in bad faith, knowingly fraudulent or deliberately dishonest, or constituted willful misconduct, a breach of Indemnitee’s duty of loyalty to the Company or resulted from any personal profit or advantage to which Indemnitee is not legally entitled, or is conduct for which indemnification is not available as a matter of law (but only to the extent of such specific determination).

(f)            Indemnify Indemnitee for any Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, and sustained in any proceeding for which payment is actually made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance.

(g)           Indemnify Indemnitee for any Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, for which the Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement.

16.          Services to the Company. This Agreement shall not be deemed an employment agreement between the Company (or any of its subsidiaries or Enterprises) and Indemnitee. Indemnitee specifically acknowledges that Indemnitee’s service to the Company or any of its subsidiaries or Enterprises is at will and the Indemnitee may be discharged at any time for any reason, with or without cause, except as may be otherwise provided in any written employment agreement between Indemnitee and the Company (or any of its subsidiaries or Enterprises), other applicable formal severance policies duly adopted by the Board or, with respect to service as a director or officer of the Company, by the Constituent Documents or Delaware law.

17.          Successors and Binding Agreement.

(a)            The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to Indemnitee and Indemnitee’s counsel, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place. This Agreement shall be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any Person acquiring directly or indirectly all or substantially all of the business or assets of the Company whether by purchase, merger, consolidation, reorganization or otherwise (and such successor will thereafter be deemed the “Company” for purposes of this Agreement), but shall not otherwise be assignable or delegatable by the Company.

(b)           This Agreement shall inure to the benefit of and be enforceable by the Indemnitee’s personal or legal representatives, executors, administrators, heirs, distributees, legatees and other successors.

(c)            This Agreement is personal in nature and neither of the parties hereto shall, without the consent of the other, assign or delegate this Agreement or any rights or obligations hereunder except as expressly provided in Sections 17(a) and 17(b). Without limiting the generality or effect of the foregoing, Indemnitee’s right to receive payments hereunder shall not be assignable, whether by pledge, creation of a security interest or otherwise, other than by a transfer by the Indemnitee’s will or by the laws of descent and distribution, and, in the event of any attempted assignment or transfer contrary to this Section 17(c), the Company shall have no liability to pay any amount so attempted to be assigned or transferred.

(d)            All agreements and obligations of the Company contained herein shall continue during the period that Indemnitee is a director or officer of the Company (or is serving at the request of the Company as a director, officer, employee, member, trustee or agent of another enterprise) and shall continue thereafter (i) so long as Indemnitee may be subject to any possible Indemnifiable Claim (including any rights of appeal thereto) and (ii) throughout the pendency of any proceeding (including any rights of appeal thereto) commenced by Indemnitee to enforce or interpret his or her rights under this Agreement, even if, in either case, he or she may have ceased to serve in such capacity at the time of any such Claim or proceeding.

18.          Notices. For all purposes of this Agreement, all communications, including without limitation notices, consents, requests or approvals, required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when hand delivered or when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, or five business days after having been mailed by United States registered or certified mail, return receipt requested, postage prepaid or one business day after having been sent for next-day delivery by a nationally recognized overnight courier service, addressed to the Company (to the attention of the Secretary of the Company) and to Indemnitee at the addresses shown on the signature page hereto, or to such other address as any party may have furnished to the other in writing and in accordance herewith, except that notices of changes of address will be effective only upon receipt.

19.          Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware, without giving effect to the principles of conflict of laws of such State. The Company and Indemnitee each hereby irrevocably (a) consent to the exclusive jurisdiction of the Delaware Court for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement, (b) agree that any action arising out of or relating to this Agreement shall be brought only in the Delaware Court, (c) waive any objection to the laying of venue of such action or proceeding in the Delaware Court, and (d) waive, and agree not to plead or make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.

20.          Validity. If any provision of this Agreement or the application of any provision hereof to any person or circumstance is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstance shall not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal shall be reformed to the extent, and only to the extent, necessary to make it enforceable, valid or legal. In the event that any court or other adjudicative body shall decline to reform any provision of this Agreement held to be invalid, unenforceable or otherwise illegal as contemplated by the immediately preceding sentence, the parties thereto shall take all such action as may be necessary or appropriate to replace the provision so held to be invalid, unenforceable or otherwise illegal with one or more alternative provisions that effectuate the purpose and intent of the original provisions of this Agreement as fully as possible without being invalid, unenforceable or otherwise illegal.

21.          Miscellaneous. No provision of this Agreement may be supplemented, modified or amended unless such supplement, modification or amendment is agreed to in writing signed by Indemnitee and the Company. No waiver of any of the provisions of this Agreement shall be binding unless in the form of a writing signed by the party against whom enforcement of the waiver is sought, and no such waiver by either party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, expressed or implied with respect to the subject matter hereof have been made by either party that are not set forth expressly in this Agreement. References to Sections are to references to Sections of this Agreement.

22.          Certain Interpretive Matters. No provision of this Agreement shall be interpreted in favor of, or against, either of the parties hereto by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof.

23.          Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together shall constitute one and the same agreement.

24.          Contribution. To the fullest extent permissible under applicable law, if the indemnification or other rights and benefits provided to Indemnitee in this Agreement are unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amounts incurred by Indemnitee, for any and all Indemnifiable Losses in connection with any claim relating to an Indemnifiable Claim under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Indemnifiable Claim in order to reflect (i) the relative benefits received by the Company, on the one hand, and Indemnitee, on the other hand, as a result of the event(s) and/or transaction(s) giving cause to such Indemnifiable Claim; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents), on the one hand, and Indemnitee, on the other hand, in connection with such event(s) and/or transaction(s), with any such determination regarding the contribution amount being made in the same manner as a Standard of Conduct Determination as set forth in Section 7(d)(i) or (ii), as applicable.

IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly authorized representative to execute this Agreement as of the date first above written.

	CENCORA, INC.


	Name:
	Title:
	Date:

	INDEMNITEE


	Name:
	Date:

EXHIBIT 10.2

amendment NO. 2 to the AMENDED AND RESTATED
Shareholders Agreement

This AMENDMENT NO. 2 (this “Amendment”) to THE AMENDED AND RESTATED SHAREHOLDERS AGREEMENT, dated as of June 1, 2021 (as further amended on August 2, 2022, the “Shareholders Agreement”) is entered into as of August 16, 2024, by and between Cencora, Inc. a Delaware corporation formerly known as AmerisourceBergen Corporation (the “Company”), and Walgreens Boots Alliance, Inc., a Delaware corporation (“WBA”). Capitalized terms used but not defined herein shall have the meaning ascribed to such term in the Shareholders Agreement.

WHEREAS, pursuant to Section 6.4 of the Shareholders Agreement, the Shareholders Agreement may be amended or modified by a written instrument signed by each of the Company and WBA; and

WHEREAS, the Company and WBA wish to amend and modify the Shareholders Agreement as set forth herein.

NOW, THEREFORE, the Company and WBA agree as follows:

1.            Amendment. The text “eleven (11)” in clause (a)(i)(A) of Section 1.3 of the Shareholders Agreement is hereby replaced in its entirety with the text “fourteen (14)”.

2.            Effectiveness. This Amendment shall become effective as of the date hereof.

3.            Effect of Amendment. This Amendment shall not constitute a waiver, amendment or modification of any other provision of the Shareholders Agreement. Except as specifically modified and amended hereby, the Shareholders Agreement shall remain unchanged and in full force and effect. References in the Shareholders Agreement to “this Agreement”, “herein”, “hereunder”, “hereto”, “hereof” and words of similar import shall refer to the Shareholders Agreement as amended hereby, and references to the date of the Shareholders Agreement, and references to the “date hereof”, “the date of this Agreement” or words of similar meaning in the Shareholders Agreement, shall continue to refer to June 1, 2021.

4.            Miscellaneous. The provisions of 6.2 (Notices), 6.4 (Amendments and Waivers), 6.5 (Successors and Assigns), 6.7 (Counterparts), 6.8 (Entire Agreement), 6.9 (Governing Law; Jurisdiction), 6.10 (Waiver of Jury Trial) and 6.12 (No Third Party Beneficiaries) of the Shareholders Agreement are incorporated herein by reference, mutatis mutandis and shall be binding upon the Company and WBA.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above.

	Cencora, inc.

	/s/ Elizabeth S. Campbell
	Name:	Elizabeth S. Campbell
	Title:	Executive Vice President & Chief Legal Officer

	walgreens boots alliance, inc.

	/s/ Joseph B. Amsbary Jr.
	Name:	Joseph B. Amsbary Jr.
	Title:	Senior Vice President, Corporate Secretary

[Signature Page to Amendment No. 2 to Shareholders Agreement]

EXHIBIT 10.3

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT (the “Agreement”) by and between Cencora, Inc., a Delaware corporation (hereinafter the “Company”), and [NAME] (the “Executive”), executed by the parties hereto on the dates set forth below and dated and effective as of [DATE] (the “Effective Date”).

WHEREAS, the Company and the Executive desire to enter into this Agreement to memorialize the terms of the Executive’s employment with the Company.

NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows:

1.            Employment Period. The Company shall continue to employ the Executive, either directly or through a Subsidiary (as defined below), and the Executive shall continue to serve the Company or any such Subsidiary, on the terms and conditions set forth in this Agreement, beginning the date first set forth above (the “Effective Date”) and until that employment ceases as provided below in Section 4 (the “Employment Period”). “Subsidiary” means any entity that is controlled, directly or indirectly, by the Company.

2.            Position and Duties.

(a)            Title. As of the Effective Date, the Executive is employed as the [TITLE] of the Company. During the Employment Period, the Executive shall continue to be employed in such capacity, or in such other capacity with the Company or any Subsidiary as may be determined from time to time by the Company, provided that any such other capacity shall be at a salary grade level that is substantially equivalent to or greater than the Executive’s salary grade level as of the date of this Agreement.

(b)            Duties. During the Employment Period, but excluding any periods of vacation and absence due to intermittent illness to which the Executive is entitled, and any services on corporate, civic or charitable boards or committees, lectures, speaking engagements or teaching engagements that are approved by the Executive’s direct supervisor and that do not significantly interfere with the performance of the Executive’s responsibilities to the Employer (as defined below) or violate the provisions of Section 9, the Executive shall devote the Executive’s full time and attention during normal business hours to the business and affairs of the Employer and the Executive shall use reasonable efforts to carry out all duties and responsibilities assigned to the Executive faithfully and efficiently. The “Employer” means the Cencora Entity (as defined below) by which the Executive is then employed. “Cencora Entity” means the Company or any Subsidiary, as the case may be. For purposes of this Agreement, should the Executive be employed (or have been employed at any time during the Employment Period) by an Employer or Employers other than the Company, the term “Company” shall be deemed to include or refer to such Employer or Employers, to the extent required by the context.

3.            Compensation.

(a)            Base Salary. During the Employment Period, the Executive shall receive an annual base salary payable in accordance with the regular payroll practices of the Company. The Executive’s base salary shall be reviewed annually by the Compensation and Succession Planning Committee (the “Committee”) of the Board of Directors of the Company (the “Board”) and/or the Chief Executive Officer of the Company (the “CEO”), in accordance with the Company’s standard practices for executives generally, and may be increased as determined in the sole discretion of the Committee or the CEO (as applicable) or by any person or persons to whom the Committee or CEO has delegated such authority.

(b)            Annual Bonus and Incentive Plans; Other Benefits. During the Employment Period: (i) the Executive shall be entitled to participate in any short-term and long-term incentive programs established and/or maintained by the Company for its senior level executives generally, and the terms of any agreements or plans related to such plans or programs shall control; (ii) the Executive shall be entitled to participate in all incentive, savings and retirement plans, practices, policies and programs of the Company to at least the same extent as other senior executives of the Company; (iii) the Executive and/or the Executive’s family, as the case may be, shall be eligible for participation in, and shall receive all benefits under, all applicable welfare benefit plans, practices, policies and programs and perquisites provided by the Company to at least the same extent as other executives of the Company; and (iv) the Executive shall be entitled to, and the Company shall provide the Executive with, vacation in accordance with the terms of the applicable Company policy.

(c)            Right to Amend Plans. Nothing in this Agreement precludes the Company from modifying or terminating any incentive, savings and retirement, paid time off, welfare or fringe benefit or other employee benefit plan, practice, policy or program at any time in its sole discretion.

(d)            Expenses. During the Employment Period, the Executive shall be entitled to receive prompt reimbursement or advancement for all reasonable expenses incurred or anticipated to be incurred by the Executive in carrying out the Executive’s duties under this Agreement, provided that the Executive complies with the generally applicable policies, practices and procedures of the Company for submission of expense reports, receipts, or similar documentation of such expenses.

(e)            Section 409A. Notwithstanding anything herein to the contrary or otherwise, as required by Section 409A of the Internal Revenue Code of 1986, as amended from time to time (“Code”), and its implementing regulations and guidance (“Section 409A”) (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive during any calendar year shall not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive in any other calendar year, (ii) the reimbursements for expenses for which the Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (iii) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.

4.            Termination of Employment.

(a)            Death or Disability. The Executive’s employment and the Employment Period shall terminate automatically upon the Executive’s death or Disability during the Employment Period. “Disability” means a condition entitling the Executive to benefits under the Company’s Long Term Disability Plan.

(b)            By the Company. The Company may terminate the Executive’s employment under this Agreement during the Employment Period for Cause or without Cause. “Cause” means:

(i)            the continued failure by the Executive to substantially perform the Executive’s duties as contemplated by this Agreement (other than any such failure resulting from the Executive’s incapacity due to physical or mental illness or injury or any such actual or anticipated failure after the issuance by the Executive of a Notice of Termination for Good Reason) over a period of not less than 30 days after a demand for substantial performance is delivered to the Executive by the Board or by the Chief Executive Officer of the Company, which demand identifies the manner in which it is believed that the Executive has not substantially performed the Executive’s duties;

(ii)           the willful misconduct of the Executive materially and demonstrably injurious to the Company (including, without limitation, any breach by the Executive of Section 9 of this Agreement); provided that no act or failure to act on the Executive’s part shall be considered willful if done, or omitted to be done, by the Executive with reasonable belief that the Executive’s action or omission was in the best interest of the Company;

(iii)          the Executive’s conviction of a misdemeanor, which, as determined in good faith by the Board, constitutes a crime of moral turpitude and gives rise to material harm to the Company or to any Subsidiary or affiliate of the Company;

(iv)          the Executive’s conviction of a felony (including, without limitation, any felony constituting a crime of moral turpitude); or

(v)           the Executive’s material failure to comply with the Company’s code of conduct or employment policies.

(c)            By the Executive. The Executive may terminate employment under this Agreement for Good Reason or without Good Reason. “Good Reason” means without the Executive’s consent:

(i)            any reduction in the Executive’s base salary (other than reduction in base salary if such reduction is coincident with a reduction applicable to all members of the Company’s senior management team); or

(ii)           material failure by the Company to comply with any provision of Sections 2 and 3 of this Agreement (including, but not limited to, a diminution in the Executive’s authority, duties, or responsibilities) other than an isolated, insubstantial or inadvertent failure that is not taken in bad faith and is remedied by the Company within 30 days after receipt of written notice thereof from the Executive.

A termination of employment by the Executive for Good Reason shall be effectuated by giving the Company written notice (“Notice of Termination for Good Reason”) of the termination, setting forth in reasonable detail the specific conduct that constitutes Good Reason and the specific provision(s) of this Agreement on which the Executive relies. Such Notice of Termination for Good Reason must be received by the Company no later than the 60^th day after the first occurrence of the event that gives rise to Good Reason. The Company shall have 30 days to remedy the conduct set forth in the Notice of Termination for Good Reason. A termination of employment by the Executive for Good Reason shall be effective on the 60^th day following the date when the Notice of Termination for Good Reason is given, unless the conduct set forth in the notice is remedied by the Company within the 30-day period. A termination of the Executive’s employment by the Executive without Good Reason shall be effected by giving the Company at least 30 days’ advance written notice of the termination.

(d)            Date of Termination. The “Date of Termination” means the date of the Executive’s death, the date of the Executive’s termination of employment on account of Disability, or the date of the termination of the Executive’s employment under this Agreement by the Company for Cause or without Cause or by the Executive for Good Reason or without Good Reason, as the case may be, is effective. The Employment Period shall end on the Date of Termination.

(e)            Separation from Service. For purposes of determining under Section 409A whether there has been a “separation from service” with the meaning of Treasury Regulation Section 1.409A-1(h) (or any successor regulation), the Executive shall be deemed to have incurred a separation from service if the Executive’s employment has been terminated in accordance with this Section 4 and the Executive is performing less than 50% of the average level of bona fide services the Executive was performing for the Company in the immediately preceding 36-month period (“Separation from Service”). In addition, notwithstanding any other provision of this Agreement to the contrary, any payment or benefit described in Section 5 that represents a “deferral of compensation” within the meaning of Section 409A shall only be paid or provided to the Executive upon a Separation from Service as defined herein.

(f)            Effective as of the Date of Termination, Executive shall be deemed to have resigned from all Company-related positions, including as an officer and director of the Company and its Subsidiaries and affiliates.

5.            Obligations of the Company upon Termination.

(a)            By the Company Other Than for Cause or by the Executive for Good Reason. Subject to Section 5(d), if during the Employment Period the Company terminates the Executive’s employment under this Agreement (other than for Cause) or the Executive terminates employment under this Agreement for Good Reason:

(i)            the Executive shall be entitled to severance equal to continued payment for two years after the Separation from Service of the Executive’s base salary (as in effect on the Date of Termination without giving effect to any diminution in base salary that constitutes grounds for termination by the Executive for Good Reason in accordance with Section 4(c)(i)), which amount shall be paid in installments over such two-year period pursuant to the Company’s normal payroll policy;

(ii)           the Executive shall be entitled to receive a bonus payment equal to the amount, if any, to which the Executive would be entitled to receive under the Company’s annual bonus program if the Executive had remained employed for the fiscal year of the Company in which such Separation from Service occurs (assuming target attainment of any applicable performance objectives), multiplied by a fraction, the numerator of which is the number of days in such current fiscal year through the Separation from Service, and the denominator of which is 365, with any such amount to be paid within 60 days following the Date of Termination as set forth below;

(iii)          for the 18-month period following the Executive’s Separation from Service (subject to earlier termination as described below), if the Executive elects to receive continuation coverage under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall pay the COBRA premium costs of medical, prescription, dental and vision coverage, if any, under the Company’s group health plans for the Executive and, to the extent permitted under COBRA, the Executive’s spouse and eligible dependents, if any, with such payment not to exceed the COBRA rates for such coverage; provided, however, that entitlement to any such COBRA premium payments shall terminate upon COBRA ineligibility, including, without limitation, by reason of the Executive’s commencement of eligibility under the group health plan of any other employer and the Executive’s commencement of eligibility for Medicare benefits under Title XVIII of the Social Security Act. The Executive shall notify the Company of the commencement of the Executive’s eligibility under the group health plan of any other employer and/or of eligibility for Medicare benefits under Title XVIII of the Social Security Act at any time during the 18-month period following the Executive’s Separation from Service. If the Executive remains on COBRA coverage for the entire 18-month period in which the Executive is entitled to such Company paid coverage, the Company shall make monthly payments to the Executive for the 6-month period immediately following the expiration of the 18-month COBRA period equal to the amount of premium costs that the Company would have paid on the Executive’s behalf had the Executive been eligible to continued coverage under COBRA. Notwithstanding anything to the contrary set forth above, the Company, in its sole discretion, may discontinue any coverage contemplated hereunder in the event that such continuation is not permitted under or would adversely affect the tax status of the plan or plans of the Company pursuant to which the coverage is provided or could result in an excise tax on the Company or the Executive, in which case the Company shall make supplemental severance payments to the Executive in monthly amounts equal to the amounts to which the Executive otherwise would have been entitled hereunder in respect of such coverage for the remainder of the period that the Company otherwise would have been obligated to pay such COBRA premium costs on behalf of the Executive. Any amounts that are paid on the Executive’s behalf or paid directly to the Executive as supplemental severance payments in accordance with this Section 5(a)(iii) shall be considered taxable income to the Executive and any taxes on such amounts shall be the Executive’s responsibility and subject to applicable tax withholding;

(iv)         the Executive shall be entitled to receive executive level outplacement assistance under any outplacement assistance program then being maintained by the Company in accordance with the terms of any such program; and

(v)          the Company shall pay, or cause to be paid, to the Executive, in a lump sum in cash within 30 days after the Separation from Service, the following accrued but unpaid cash compensation of the Executive (the “Accrued Obligations”): (V) the Executive’s base salary through the Date of Termination that has not yet been paid; (W) any earned annual bonus with respect to the immediately preceding fiscal year that has not been paid; (X) any accrued but unpaid vacation pay; (Y) any unreimbursed employee business expenses; and (Z) any vested benefits accrued and due under any applicable benefit plan, policy, practice or program of, or contract or agreement with, the Company.

The Company’s obligation to make any payments, or cause any payments to be made, under this Section 5(a) (other than the Accrued Obligations) shall be conditioned upon the Executive’s execution, and non-revocation, by the 60^th day following the Date of Termination, of a written release, substantially in the form attached hereto as Annex 1, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment under this Agreement or the termination thereof (other than any entitlements under the terms of this Agreement to indemnification or under any other plans or programs of the Company in which the Executive participated and under which the Executive has accrued and is due a benefit) (the “Release”). The payments and benefits described in this Section 5(a) (other than the Accrued Obligations) shall be paid, or shall begin to be paid or provided, as applicable, as soon as administratively practicable after the Release becomes irrevocable, but in no event later than 75 days following the Date of Termination, provided that if the 60-day period described above begins in one taxable year and ends in a second taxable year such payments or benefits shall not commence until the second taxable year. The first payment in a series of installment payments shall include all installments not yet paid from the Date of Termination until the first payment date.

If and to the extent compliance with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) is necessary to avoid the application of an additional tax under Section 409A to payments due to the Executive upon or following the Executive’s Separation from Service, then notwithstanding any other provision of this Agreement (or any otherwise applicable plan, policy, agreement or arrangement), any such payments that are otherwise due within six months following the Executive’s Separation from Service shall be deferred (without interest) and paid to the Executive in a lump sum immediately following that six month period. This provision shall not be construed as preventing payments pursuant to Section 5 equal to an amount up to two times the lesser of (a) the Executive’s annualized compensation for the year prior to the Separation from Service, and (b) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code, being paid to the Executive in the first six months following the Separation from Service. For purposes of the application of Section 409A, each payment in a series of payments described in this Section 5 shall be deemed a separate payment.

(b)            Death or Disability. If the Executive’s employment is terminated by reason of the Executive’s death or Disability during the Employment Period, the Company shall pay the Accrued Obligations to the Executive or the Executive’s estate or legal representative, as applicable, in a lump sum in cash within 30 days after the Date of Termination. In such event, the Company shall have no further obligations under this Agreement or otherwise to or with respect to the Executive or the Executive’s estate or legal representative, as applicable, other than for any entitlements under the terms of any other plans or programs of the Company in which the Executive participated and under which the Executive has become entitled to a benefit.

(c)            By the Company for Cause or by the Executive Other than for Good Reason. If the Executive’s employment is terminated by the Company for Cause during the Employment Period, or the Executive voluntarily terminates employment during the Employment Period, other than for Good Reason, the Company shall pay the Executive, or shall cause the Executive to be paid, the Accrued Obligations, and the Company shall have no further obligations under this Agreement or otherwise to or with respect to the Executive other than for any entitlements under the terms of any other plans or programs of the Company in which the Executive participated and under which the Executive has become entitled to a benefit.

(d)            Limitation on Cash Severance Benefits. Notwithstanding anything to the contrary in Section 5(a) or Section 6(a), Executive acknowledges that the Company has adopted its Policy Limiting Executive Severance prior to the date hereof and Executive agrees that the Severance Benefits (as defined below) that are payable under this Agreement are limited by such policy and as a result such Severance Benefits shall not exceed 2.99 times the sum of Executive’s base salary and target annual bonus, in each case as in effect on the Date of Termination, unless the Board, in its discretion, determines to submit any amount that would exceed such sum to approval by the Company’s stockholders. For the purposes of this Section 5(d), “Severance Benefits” means, as applicable, the aggregate of (i) any cash severance pay based on a multiple of Executive’s base salary or annual bonus, (ii) the present value of health and other insurance benefits and perquisites that are provided at the Company’s cost following the Date of Termination, and (iii) any annual cash bonus for the year in which the Date of Termination occurs (if and to the extent that such bonus would not have otherwise been provided upon termination of employment). Payments under this Agreement shall be reduced for the purposes of the Policy Limiting Executive Severance in such a way as to minimize the reduction in the economic value deliverable to the Executive, as determined by the Board, with cash payments reduced in the first instance.

6.            Change in Control.

(a)            Subject to Section 5(d), if during the Employment Period and upon or within 24 months following a Change in Control (as defined in the Company’s 2022 Omnibus Incentive Plan, or its successor, as in effect on the Effective Date), the Company terminates the Executive’s employment under this Agreement (other than for Cause) or the Executive terminates employment under this Agreement for Good Reason, in addition to the payments and benefits set forth in Section 5(a) above, the Executive shall be entitled to two times the Executive’s target annual bonus, which amount shall be paid in installments over the two-year period following the Date of Termination pursuant to the Company’s normal payroll policy, subject to the Executive’s timely execution and non-revocation of a Release and shall be payable following the effectiveness of such Release as specified in Section 5(a). For purposes of the application of Section 409A, each payment described in this Section 6 shall be deemed a separate payment.

(b)            In the event of a change in ownership or control under Section 280G of the Code, if it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Code, the aggregate present value of the Payments under the Agreement shall be reduced (but not below zero) to the Reduced Amount (defined below) if and only if the Accounting Firm (described below) determines that the reduction shall provide the Executive with a greater net after-tax benefit than would no reduction. No reduction shall be made unless the reduction would provide the Executive with a greater net after-tax benefit. The determinations under this Section shall be made as follows:

(i)            The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be subject to the Excise Tax (defined below), determined in accordance with Section 280G(d)(4) of the Code. The term “Excise Tax” means the excise tax imposed under Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax.

(ii)           Payments under this Agreement shall be reduced on a nondiscretionary basis in such a way as to minimize the reduction in the economic value deliverable to the Executive. Where more than one payment has the same value for this purpose and they are payable at different times, they shall be reduced on a pro rata basis. Only amounts payable under this Agreement shall be reduced pursuant to this Section.

(iii)          All determinations to be made under this Section shall be made by an independent certified public accounting firm selected by the Company and agreed to by the Executive immediately prior to the change-in-ownership or -control transaction (the “Accounting Firm”). The Accounting Firm shall provide its determinations and any supporting calculations both to the Company and the Executive within 10 days of the transaction. Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section shall be borne solely by the Company.

7.            Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company for which the Executive may qualify. Vested benefits and other amounts that the Executive is otherwise entitled to receive on or after the Date of Termination under any plan, policy, practice or program of, or any contract or agreement with, the Company shall be payable in accordance with such plan, policy, practice, program, contract or agreement, as the case may be, except as explicitly modified by this Agreement.

8.            No Mitigation. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and such amounts shall not be reduced, regardless of whether the Executive obtains other employment (except as otherwise provided in Section 5(a)(iii) of this Agreement with respect to the payment of COBRA premiums).

9.            Confidential Information; Non-solicitation; Non-competition.

(a)            Confidentiality. The Executive agrees and acknowledges that by reason of the Executive’s employment by and service to the Company, the Executive shall have access to, become exposed to and/or become knowledgeable about confidential information of the Company (the “Confidential Information”) from time to time during the Employment Period, including, without limitation, proposals, plans, inventions, practices, systems, programs, processes, methods, techniques, research, records, supplier sources, customer lists and other forms of business information that are not known to the Company’s competitors, are not recognized as being encompassed within standard business or management practices and/or are kept secret and confidential by the Company. The Executive agrees that at no time during or after the Employment Period shall the Executive disclose or use the Confidential Information except as may be required in the prudent course of business for the benefit of the Company. The Executive also agrees to be subject to the Company’s Code of Ethics and Business Conduct as in effect from time to time during the Employment Period.

(b)            Permitted Communications. Nothing in this Agreement shall prohibit or restrict the Executive from initiating communications directly with, responding to any inquiry from, providing testimony before, providing confidential information to, reporting possible violations of law or regulation to, or filing a claim or assisting with an investigation directly with a self-regulatory organization or a government agency or entity, including the Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, the Department of Justice, the Securities and Exchange Commission, Congress, any agency Inspector General or any other federal, state or local regulatory authority, or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation. Nor does this Agreement require the Executive to obtain prior authorization from the Company before engaging in any conduct described in this Section 9(b), or to notify the Company that the Executive has engaged in any such conduct. To the extent permitted by law and except as provided above in this Section 9(b), upon receipt of any subpoena, court order, or other legal process compelling the disclosure of any Confidential Information or trade secrets of the Company, the Executive agrees to give prompt written notice to the Company so as to permit the Company to protect its interests in confidentiality to the fullest extent possible and the Executive shall reasonably cooperate with the Company’s efforts. Please take notice that federal law provides criminal and civil immunity to federal and state claims for trade secret misappropriation to individuals who disclose trade secrets to their attorneys, courts, or government officials in certain, confidential circumstances that are set forth at 18 U.S.C. §§ 1833(b)(1) and 1833(b)(2), related to the reporting or investigation of a suspected violation of the law, or in connection with a lawsuit for retaliation for reporting a suspected violation of the law.

(c)            Noncompetition. The Executive acknowledges that the Company is generally engaged in business throughout the United States. During the Executive’s employment by the Company and for two years after the Date of Termination or the expiration of the Employment Period, the Executive agrees that the Executive shall not, unless acting with the prior written consent of the Company, directly or indirectly, own, manage, control, or participate in the ownership, management or control of, or be employed or engaged by, or otherwise affiliated or associated with, as an officer, director, employee, consultant, independent contractor or otherwise, any other corporation, partnership, proprietorship, firm, association or other business entity, which is engaged in any business, including the wholesale distribution of pharmaceutical products, that, or otherwise engage in any business that, as of the Date of Termination or expiration of the Employment Period, as applicable, is engaged in by the Company, has been reviewed with the Board for development to be owned or managed by the Company, and/or has been divested by the Company but as to which the Company has an obligation to refrain from involvement, but only for so long as such restriction applies to the Company; provided, however, that the ownership of not more than 5% of the equity of a publicly traded entity shall not be deemed to be a violation of this Section 9(c). During such two-year period, the Executive also agrees to be available to the Company on a reasonable basis for consulting at a per diem rate that reflects the Executive’s annual salary as in an effect prior to the Executive’s termination of employment (plus reimbursement of the Executive’s reasonable expenses). Notwithstanding the foregoing, the Executive shall be relieved of the covenants provided for in this Section 9(c) in the event that the Company fails to make payments required to be made to the Executive as provided for in Section 5(a) or Section 6(a) of this Agreement, except as a result of the Executive’s breach of this Agreement.

(d)            Nonsolicitation. The Executive also agrees that the Executive shall not, directly or indirectly, during the period described in Section 9(c) induce any person who is an employee, officer, director, or agent of the Company, to terminate such relationship, or employ, assist in employing or otherwise be associated in business with any person or entity who at the time or within the 12-month period prior thereto, is or was employed or engaged by the Company, including without limitation those who commence such positions with the Company after the Date of Termination; provided that the foregoing shall not apply to general ads or advertisements which are not targeted to any specific employee, person or entity where Executive was not directly or indirectly involved.

(e)            Reasonableness. The Executive acknowledges and agrees that the restrictions contained in this Section 9 are reasonable and necessary to protect and preserve the legitimate interests, properties, goodwill and business of the Company, that the Company would not have entered into this Agreement in the absence of such restrictions and that irreparable injury shall be suffered by the Company should the Executive breach the provisions of this Section. The Executive represents and acknowledges that (i) the Company hereby advises the Executive to consult the Executive’s own legal counsel in respect of this Agreement, (ii) the Executive has consulted with and been advised by the Executive’s own counsel in respect of this Agreement, and (iii) the Executive has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with the Executive’s counsel.

(f)            Injunctive Relief. The Executive further acknowledges and agrees that a breach of the restrictions in this Section 9 shall not be adequately compensated by monetary damages. The Executive agrees that actual damage may be difficult to ascertain and that, in the event of any such breach, the Company shall be entitled to injunctive relief, without the requirement to post a bond, in addition to such other legal or equitable remedies as may be available to the Company. In the event that the provisions of this Section 9 should ever be adjudicated to exceed the limitations permitted by applicable law in any jurisdiction, it is the intention of the parties that the provision shall be amended such that those provisions are made consistent with the maximum limitations permitted by applicable law, that such amendment shall apply only within the jurisdiction of the court that made such adjudication and that those provisions otherwise be enforced to the maximum extent permitted by law.

(g)            Jurisdiction. If the Executive breaches the Executive’s obligations under this Section 9, the Executive agrees that suit may be brought, and that the Executive consents to personal jurisdiction, in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Montgomery County, Pennsylvania; consents to the exclusive jurisdiction of any such court in any such suit, action or proceeding; and waives any objection which the Executive may have to the laying of venue of any such suit, action or proceeding in any such court. The Executive also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers.

(h)            Company. For purposes of this Section 9, the term “Company” shall be deemed to include each Subsidiary of the Company.

10.         Cooperation. Except as expressly permitted or required by this Agreement or by law and as set forth in Section 9(b) above, the Executive agrees that, upon the Company’s reasonable notice to the Executive, the Executive shall fully cooperate with the Company in investigating, defending, prosecuting, litigating, filing, initiating or asserting any actual or potential claims or investigations that may be made by or against the Company to the extent that such claims or investigations may relate to any matter in which the Executive was involved (or alleged to have been involved) while employed with the Company or of which the Executive has knowledge by virtue of the Executive’s employment with the Company. Upon submission of appropriate documentation, the Executive shall be reimbursed for reasonable and pre-approved out-of-pocket expenses incurred in rendering such cooperation.

11.         Successors. This Agreement is personal to the Executive and, without the prior written consent of the Company, shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives. This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would have been required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean both the Company as defined above and any such successor that assumes and agrees to perform this Agreement, by operation of law or otherwise.

12.         Clawback Policies. To the extent permitted under applicable law, all amounts payable under this Agreement are subject to the terms of any applicable Clawback Policy and, to the extent permitted by applicable law, including without limitation Section 409A of the Code, all amounts payable under this Agreement are subject to offset in the event that the Executive has an outstanding clawback, recoupment or forfeiture obligation to the Company under the terms of any applicable Clawback Policy. In the event of a clawback, recoupment or forfeiture event under an applicable Clawback Policy, the amount required to be clawed back, recouped or forfeited pursuant to such policy shall be deemed not to have been earned under the terms of this Agreement or otherwise, and the Company shall be entitled to recover from the Executive the amount specified under the policy to be clawed back, recouped or forfeited (which amount, as applicable, shall be deemed an advance that remained subject to the Executive satisfying all eligibility conditions for earning the amounts deferred, accrued, or credited). For the purposes of this Agreement, “Clawback Policy” means any clawback, recoupment or forfeiture provisions of any applicable clawback, recoupment or forfeiture policy (including, without limitation, a clawback policy required to be implemented by an applicable stock exchange) approved by the Board (or a committee thereof), as in effect from time to time, whether approved before or after the Effective Date of this Agreement. The Executive acknowledges and agrees that the Executive shall be bound by the terms of any such Clawback Policy as if it were set forth in this Agreement.

13.         Miscellaneous.

(a)            Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified except by a written agreement executed by the parties hereto or their respective successors and legal representatives.

(b)            Notices. All notices and other communications under this Agreement shall be in writing and shall be given by hand to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

If to the Executive, to the address on file with the Company.

If to the Company:

Cencora, Inc.

1 West First Avenue

Conshohocken, PA 19428

Attention: Elizabeth Campbell, Executive Vice President and
Chief Legal Officer

or to such other address as either party furnishes to the other in writing in accordance with this Section 13(b). Notices and communications shall be effective when actually received by the addressee.

(c)            Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest extent consistent with law.

(d)            Withholding. Notwithstanding any other provision of this Agreement, the Company may withhold from amounts payable under this Agreement all federal, state, local and foreign taxes that are required to be withheld by applicable laws or regulations.

(e)            Mandatory Arbitration. In consideration of the Company employing the Executive, and the salary and benefits provided under this Agreement, the Executive and the Company agree that all claims arising out of or relating to this Agreement and the Executive’s employment relationship with the Company, including its termination, shall be resolved by binding arbitration in accordance with the Federal Arbitration Act. This Agreement expressly does not prohibit either party from seeking provisional injunctive relief, including to prevent irreparable harm, in any court of competent jurisdiction. Any dispute shall be arbitrated in accordance with the JAMS Employment Arbitration Rules & Procedures (and any then-existing applicable emergency relief procedures should either party seek emergency relief prior to the appointment of an arbitrator), located at https://www.jamsadr.com/rules-employment-arbitration/, unless those rules and/or procedures conflict with any express term of this Agreement, in which case this Agreement is controlling. A hard copy of the JAMS rules shall be provided to the Executive upon request. All claims must be brought in a party’s individual capacity. Each party shall bear each party’s own attorneys’ fees and legal costs. However, if any party prevails on a statutory claim which affords the prevailing party attorneys’ fees and/or legal costs, the arbitrator may award reasonable attorneys’ fees and/or legal costs to the prevailing party consistent with applicable law. The parties agree to file any demand for arbitration within the time limit established by the applicable statute of limitations for the asserted claims. Failure to demand arbitration within the prescribed time period shall result in waiver of said claims. The parties agree that the Company’s business affects interstate commerce.

The agreement to arbitrate as set forth in this Section 13(f) shall not apply to the following claims or charges: (i) for unfair labor practices brought under the National Labor Relations Act if applicable; (ii) for workers’ compensation, state or federal disability or unemployment compensation benefits; (iii) for benefits under a plan that is governed by the Employee Retirement Income Security Act of 1974, to the extent it contains an alternative dispute resolution procedure; (iv) filed with the Equal Employment Opportunity Commission or any other similar agency, but only during such time such claims are pending in an agency proceeding (any dispute that is covered by this Agreement but not finally resolved by the agency must be submitted to binding arbitration pursuant to this Agreement); or (v) which are expressly precluded from inclusion in an arbitration agreement as a matter of federal law.

The agreement to arbitrate as set forth in this Section 13(f) shall cover all matters directly or indirectly arising out of or related to the Executive’s employment, recruitment or termination of employment and this Agreement, including, but not limited to, claims for breach of contract, claims involving laws against any form of discrimination or wrongful termination, and whether brought under federal or state law, claims involving the Cencora Entities and/or other employees, and claims involving the interpretation and enforcement of this arbitration agreement.

EXECUTIVE UNDERSTANDS AND AGREES THAT BY AGREEING TO THE EXCLUSIVE RESOLUTION OF SUCH CLAIMS THROUGH BINDING ARBITRATION, EXECUTIVE IS WAIVING THE EXECUTIVE’S RIGHTS TO BRING SUCH CLAIMS IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL.

(f)            Nonwaiver. The Executive’s or the Company’s failure to insist upon strict compliance with any provision of, or to assert any right under, this Agreement (including, without limitation, the right of the Executive to terminate employment for Good Reason pursuant to Section 4(c) of this Agreement) shall not be deemed to be a waiver of such provision or right or of any other provision of or right under this Agreement.

(g)            Compliance with 409A. Anything to the contrary herein notwithstanding, all benefits or payments provided by the Company to the Executive that would be deemed to constitute “nonqualified deferred compensation” within the meaning of Section 409A are intended to comply with Section 409A. If, however, any such benefit or payment is deemed to not comply with Section 409A, the Company and the Executive agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereof) so that either (i) Section 409A shall not apply or (ii) compliance with Section 409A shall be achieved.

(h)            Entire Agreement. This Agreement contains the entire understanding of the Executive and the Company with respect to employment of the Executive and supersedes any and all prior understandings, written or oral, between the Company or any Subsidiary and the Executive.

(i)             Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, and said counterparts shall constitute but one and the same instrument.

(j)             Applicable Policies. This Agreement and the compensation payable hereunder shall be subject to the share trading and other policies that may be implemented by the Board or otherwise required by law from time to time.

(k)            Survival. The respective rights and obligations of the parties hereunder shall survive any termination of the Executive’s employment to the extent necessary to the intended preservation of such rights and obligations, including, but not by way of limitation, those rights and obligations set forth in Sections 3, 5, 6, 9, 10, 11, 12 and 13.

[Signature Page Follows]

IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the authorization of the Committee, the Company has caused this Agreement to be executed in its name on its behalf, in each case on the date(s) set forth below.

	CENCORA, INC.

	By:
	Name:
	Title:
	Dated:

	EXECUTIVE


	[NAME]

	Dated:	[DATE]

ANNEX 1

SEPARATION OF EMPLOYMENT AGREEMENT
AND GENERAL RELEASE

THIS SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE (the “Agreement”) is made as of this _____day of __________, _____, by and between Cencora, Inc., a Delaware corporation (the “Company”) and [NAME] (the “Executive”).

WHEREAS, Executive formerly was employed as the Company’s [TITLE];

WHEREAS, Executive and Company entered into an Employment Agreement, dated [DATE] (the “Employment Agreement”), which provides for certain severance benefits in the event that Executive’s employment is terminated on account of a reason set forth in the Employment Agreement;

WHEREAS, Executive and the Company mutually desire to terminate Executive’s employment on an amicable basis, such termination to be effective __________, ______ (the “Date of Termination”); and

WHEREAS, in connection with the termination of Executive’s employment, the parties have agreed to a separation package and the resolution of any and all disputes between them.

NOW, THEREFORE, IT IS HEREBY AGREED by and between Executive and the Company as follows:

1.            General Release. Executive, for and in consideration of the commitments of the Company as defined and set forth in this Agreement, including the Separation Consideration, and intending to be legally bound, does hereby agree to the following general release of claims:

(a)            Executive does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates, subsidiaries and parents, and its and their officers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators (each, a “Releasee” and collectively, “Releasees”) from all legally waivable causes of action, suits, debts, claims and demands whatsoever in law or in equity, which Executive ever had, now has, or hereafter may have, whether known or unknown, or which Executive’s heirs, executors, or administrators may have, by reason of any matter, cause or thing whatsoever, from the beginning of Executive’s employment to the date of this Agreement, and particularly, but without limitation of the foregoing general terms, any claims arising from or relating in any way to Executive’s employment relationship with the Company and/or its predecessors, subsidiaries or affiliates, the terms and conditions of that employment relationship, and the termination of that employment relationship. Without limiting the generality of the foregoing, this waiver and release includes any claim or right based upon or arising under any federal, state, or local fair employment practices or equal opportunity laws, including, but not limited to, the Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act of 1993, the Age Discrimination in Employment Act of 1967 (“ADEA”), the Older Workers Benefit Protection Act (“OWBPA”), the Worker Adjustment and Retraining Notification Act, the Employee Retirement Income Security Act (“ERISA”) (including, but not limited to, claims for breach of fiduciary duty under ERISA), the Americans with Disabilities Act, [the Pennsylvania Human Relations Act, the Pennsylvania Equal Pay Law, the Pennsylvania Wage Payment Collection Act, the Pennsylvania Whistleblower Law, Title 16 of the Pennsylvania Code, including without limitation, the Pennsylvania pregnancy discrimination law, the Pennsylvania Minimum Wage Act, except as prohibited by law, the Pennsylvania Medical Marijuana Act, the Philadelphia Fair Workweek Employment Standards Ordinance, the Philadelphia Fair Practices Ordinance, the New Jersey Law Against Discrimination, the New Jersey Equal Pay Act, the New Jersey Conscientious Employee Protection Act, and the New Jersey Wage and Hour Law], including any and all amendments to the foregoing, any other federal, state or local statutes or regulatory provision, now or hereafter recognized, including those related to defamation, whistleblowers, discrimination, retaliation, harassment, or failure to accommodate based on any legally protected status or activity, any claims for attorneys’ fees and costs, federal, state, or local wage and hour laws, including but not limited to claims for overtime, minimum wages, premium wages, penalties, liquidated damages or interest, to the fullest extent permitted by law, claims for injunctive relief, and any claims asserted under the common law to the fullest extent permitted by law. This Agreement is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, implied or express contract or discrimination of any sort. To the fullest extent permitted by law, and subject to the provisions of Paragraph 10 below, Executive represents and affirms that (i) Executive has not filed or caused to be filed on Executive’s behalf any claim for relief against the Company or any Releasee and, to the best of Executive’s knowledge and belief, no outstanding claims for relief have been filed or asserted against the Company or any Releasee on Executive’s behalf; and (ii) Executive is not aware of any improper, unethical or illegal conduct or activities that Executive has not reported to any supervisor, manager, department head, human resources representative, agent or other representative of the Company, to any member of the Company’s legal or compliance departments, or to the ethics hotline.

(b)            To the fullest extent permitted by law, other than any reporting to a governmental, law enforcement, or regulatory authority concerning suspected violations of law (which Executive understands Executive is not required to disclose to the Company), and pursuant to the provisions of Paragraph 12 below, Executive represents and affirms that (i) Executive has not filed or caused to be filed on Executive’s behalf any claim for relief against the Company or any Releasee and, to the best of Executive’s knowledge and belief, no outstanding claims for relief have been filed or asserted against the Company or any Releasee on Executive’s behalf; and (ii) Executive is not aware of any improper, unethical or illegal conduct or activities that Executive has not reported to any supervisor, manager, department head, human resources representative, agent or other representative of the Company, to any member of the Company’s legal or compliance departments, or to the ethics hotline.

(c)            Special Provisions Relating to Release of Age Discrimination Claims. Executive understands and acknowledges that she is waiving and releasing any rights she may have under the ADEA, and that this waiver and release is knowing and voluntary. Executive understands and agrees that this waiver and release does not apply to any rights or claims that may arise under the ADEA after she signs this Agreement. Executive understands and acknowledges that the consideration given for this waiver and release is in addition to anything of value to which she was already entitled. Executive further understands and acknowledges that she has been advised by this writing that she should consult with an attorney prior to executing this Agreement. If at any time Executive is obligated to return the consideration Executive received under this Agreement, Executive agrees that Executive shall retain Five Hundred Dollars ($500.00), representing the consideration Executive received in exchange for waiver of Executive rights and claims under ADEA.

(d)            Nothing in the Agreement shall be deemed to release the Company from (i) claims solely to enforce this Agreement, (ii) claims for indemnification under the Company’s By-Laws, (iii) claims for payment or reimbursement pursuant to any employee benefit plan, policy or arrangement of the Company, or (iv) claims that cannot be released in this Agreement as a matter of law.

2.            Reaffirmation of Covenants. For good and valuable consideration, including without limitation the commitments of the Company as set forth in this Agreement, Executive agrees to continue to be bound by Section 9 and Section 10 of the Employment Agreement, the covenants by and obligations of Executive are incorporated by reference as if stated in full herein.

3.            Termination of Services. Executive agrees and recognizes that Executive has permanently and irrevocably severed Executive’s employment relationship with the Company, that Executive shall not seek employment with the Company or any affiliated entity at any time in the future, and that the Company has no obligation to employ Executive in the future.

4.            Non-disparagement. Executive further agrees that, except as expressly permitted in Paragraph 12 below, Executive shall not disparage or subvert the Company, or make any statement reflecting negatively on the Company, its affiliated corporations or entities, or any of its or their officers, directors, employees, agents or representatives, including, but not limited to, any matters relating to the operation or management of the Company, Executive’s employment and the termination of Executive’s employment, irrespective of the truthfulness or falsity of such statement. The Company agrees that it shall instruct the members of the Company’s Executive Management Committee as of the Date of Termination (“Instructees”) not to disparage Executive, or make any statement to any person outside the Company reflecting negatively on Executive, including, but not limited to, any matters relating to Executive’s performance or the termination of Executive’s employment, irrespective of the truthfulness or falsity of such statement. This instruction is not intended to cover communicating with legal counsel representing the Company or communicating regarding business matters. Executive agrees that as long as the Company has complied with its obligations under this Paragraph, the Company shall not be liable for any statements made by Instructees.

5.            Separation Consideration. Provided that Executive signs, returns, does not revoke, and complies with this Agreement, in full satisfaction of its commitments under the Employment Agreement, the Company agrees that the Company shall provide the following (the “Separation Consideration”):

[insert description of severance benefits to which Executive is entitled under the Employment Agreement]

6.            Accrued Obligations. Whether or not Executive enters into this Agreement or revokes this Agreement, Executive shall be entitled to the Accrued Obligations, as defined and described in the Employment Agreement.

7.            ESPP. On the next regular pay date following the Date of Termination, Executive shall receive a refund in respect of the current offering period under the Company’s Amended and Restated Employee Stock Purchase Program (the “ESPP”) of any previously withheld contributions to the ESPP, if applicable, pursuant to the terms of the ESPP.

8.            Recognition of Consideration. Executive understands and agrees that the payments, benefits and agreements provided in this Agreement are being provided to Executive in consideration for Executive’s acceptance and execution of, and in reliance upon Executive’s representations in, this Agreement. Executive acknowledges that if Executive had not executed this Agreement containing a release of all claims against the Company, or if Executive should revoke it pursuant to Paragraph 23(f) below, Executive shall not receive the consideration provided to Executive under this Agreement and Executive shall only be entitled to the payments provided in the Company’s standard severance pay plan for employees.

9.            Executive Acknowledgements. Executive acknowledges and agrees that the Company previously has satisfied, or pursuant to this Agreement hereby does satisfy, any and all obligations owed to Executive under the Employment Agreement and any other employment-related agreement or offer letter Executive has with the Company and, further, that, except as set forth expressly herein, this Agreement supersedes the Employment Agreement and any such other employment-related agreement or offer letter Executive has with the Company, and further, that, except as set forth expressly herein, no promises or representations have been made to Executive in connection with any prior employment agreement or offer letter with the Company, or the terms of this Agreement. Executive acknowledges and agrees that, with the exception of the Separation Consideration, the Company has paid to Executive all wages and other compensation to which Executive was entitled.

10.          Confidentiality of Agreement. Except as otherwise permitted under Paragraph 12, Executive agrees not to disclose the terms of this Agreement to anyone, except Executive’s spouse, attorney and, as necessary, tax/financial advisor or as required by law. It is expressly understood that any violation of the confidentiality obligation imposed hereunder constitutes a material breach of this Agreement.

11.          Company Property. Executive represents that Executive does not presently have in Executive’s possession any records and business documents, whether on computer, electronic communication, storage device, or hard copy, and other materials (including but not limited to computer disks and tapes, computer programs and software, office keys, audio or visual recordings, correspondence, files, customer lists, technical information, customer information, pricing information, business strategies and plans, sales records and all copies thereof) (collectively, the “Corporate Records”) provided by the Company and/or its predecessors, subsidiaries or affiliates or obtained as a result of Executive’s prior employment with the Company and/or its predecessors, subsidiaries or affiliates, or created by Executive while employed by or rendering services to the Company and/or its predecessors, subsidiaries or affiliates. Executive acknowledges that all such Corporate Records are the property of the Company. In addition, Executive shall promptly return in good condition any and all beepers, credit cards, cellular telephone equipment, business cards and computers. As of the Date of Termination, the Company shall make arrangements to remove, terminate or transfer any and all business communication lines including network access, cellular phone, fax line and other business numbers.

12.          Permitted Communications. Nothing in this Agreement shall prohibit or restrict Executive from initiating communications directly with, responding to any inquiry from, providing testimony before, providing information to, reporting possible violations of law or regulation to, or filing a claim or assisting with an investigation directly with a self-regulatory organization or a government agency or entity, including the Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, the Department of Justice, the Securities and Exchange Commission, Congress, any agency Inspector General or any other federal, state or local regulatory authority, or from making other disclosures that are protected under the whistleblower provisions of state or federal law or regulation. Nor does this Agreement require Executive to obtain prior authorization from the Company before engaging in any conduct described in this Paragraph 12, or to notify the Company that Executive has engaged in any such conduct. Executive acknowledges and agrees, however, that, to the fullest extent permitted by law, Executive is waiving and releasing any claim or right to recover from the Company any monetary damages or any other form of personal relief based on any claim, charge, complaint or action against the Company covered by the general release of claims set forth above. Nothing in this Agreement is intended to or shall prevent, impede or interfere with Executive’s non-waivable right to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency. Please take notice that federal law provides criminal and civil immunity to federal and state claims for trade secret misappropriation to individuals who disclose a trade secret to their attorney, a court, or a government official in certain, confidential circumstances that are set forth at 18 U.S.C. §§ 1833(b)(1) and 1833(b)(2), related to the reporting or investigation of a suspected violation of the law, or in connection with a lawsuit for retaliation for reporting a suspected violation of the law.

13.          Medicare Disclaimer. Executive represents and agrees that she has made no claim for illness or injury against the Company (nor is aware of any facts supporting any such claim against the Company) under which the Company could be liable for medical expenses she incurred before or after the execution of this Agreement. Further, Executive represents and agrees that she is not aware of any medical expenses paid by Medicare and for which the Company is or could be liable now or in the future. Executive represents and agrees that, to the best of her knowledge, no liens exist from any governmental entities, including those for Medicare conditional payments. Executive agrees to indemnify, defend, and hold the Company harmless from Medicare claims, liens, damages, conditional payments, and rights to payment, if any, including attorneys’ fees, and further agrees to waive any and all private causes of action for damages pursuant to 42 U.S.C. § 1395y(b)(3)(A) et seq.

14.          Resignation of Offices. Effective as of the Date of Termination, Executive shall be deemed to have resigned all Company-related positions, including as an officer and director of the Company and its parents, subsidiaries and affiliates with no further action on the part of Executive or the Company.

15.          No Admission of Liability. The parties agree and acknowledge that the agreement by the Company described herein, and the settlement and termination of any asserted or unasserted claims against the Releasees, are not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed by any of the Releasees to Executive.

16.          Consequences of Breach. Executive agrees and recognizes that should Executive breach any of the obligations or covenants set forth in this Agreement, including Section 9 and Section 10 of the Employment Agreement incorporated herein, the Company shall have no further obligation to provide Executive with the consideration set forth herein, and shall have the right to seek repayment of all consideration paid up to the time of any such breach. Further, Executive acknowledges in the event of a breach of this Agreement, Releasees may seek any and all appropriate relief for any such breach, including equitable relief and/or money damages, attorney’s fees and costs.

17.          Injunctive Relief. Executive further agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as to an equitable accounting of all earnings, profits and other benefits arising from any violations of this Agreement, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.

18.          Applicable Company Policies. Notwithstanding anything in this Agreement to the contrary, this Agreement and the compensation payable hereunder shall be subject to any applicable clawback or recoupment policies, share trading policies, and other policies that may be implemented by the Board of Directors of the Company or otherwise required by law from time to time.

19.         Severability. Should any provision of this Agreement, or portion thereof, be held to be void or unenforceable by an arbitrator, governmental agency, or court of applicable jurisdiction, then only said provision or portion of provision may be severed, and this Agreement shall continue in full force and effect, to be read and construed as if the void or unenforceable provisions were originally deleted.

20.         Governing Law. This Agreement and the obligations of the parties hereunder shall be construed, interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania.

21.         Arbitration. Executive acknowledges and agrees that Section 13(g) of the Employment Agreement is incorporated as if set forth herein.

22.          Executive Acknowledgements. Executive certifies and acknowledges as follows:

(a)            That Executive has read the terms of this Agreement, and that Executive understands its terms and effects, including the fact that Executive has agreed to RELEASE AND FOREVER DISCHARGE the Company and each and every one of its affiliated entities from any legal action arising out of Executive’s employment relationship with the Company and the termination of that employment relationship;

(b)            That Executive has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Executive acknowledges is adequate and satisfactory to Executive and which Executive acknowledges is in addition to any other benefits to which Executive is otherwise entitled;

(c)            That Executive has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement;

(d)            That Executive does not waive rights or claims that may arise after the date this Agreement is executed;

(e)            That the Company has provided Executive with a period of twenty-one (21) days within which to consider this Agreement, and that Executive has signed on the date indicated below after concluding that this Agreement is satisfactory to Executive; and

(f)            Executive acknowledges that this Agreement may be revoked by Executive within seven (7)-days after execution by giving written notice of such revocation by hand delivery, fax or email to the Company’s Executive Vice President and Chief Legal Officer within said seven (7)-day period, and it shall not become effective until the expiration of such seven (7)-day revocation period. In the event of a timely revocation by Executive, this Agreement shall be deemed null and void and the Company shall have no obligations hereunder.

(g)            The unenforceability or nullity of one or more of the provisions of this Agreement shall not render any other provision unenforceable, null or void.

[SIGNATURE PAGE FOLLOWS]

Intending to be legally bound hereby, Executive and the Company executed the foregoing Separation of Employment Agreement and General Release this _____ day of __________, ______.

			Witness:
[NAME]

CENCORA, INC.			Witness:

By:
Name:
Title:

Cover	Aug. 13, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Aug. 13, 2024
Current Fiscal Year End Date	--09-30
Entity File Number	1-16671
Entity Registrant Name	Cencora, Inc.
Entity Central Index Key	0001140859
Entity Tax Identification Number	23-3079390
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	1 West First Avenue
Entity Address, City or Town	Conshohocken
Entity Address, State or Province	PA
Entity Address, Postal Zip Code	19428-1800
City Area Code	610
Local Phone Number	727-7000
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common stock
Trading Symbol	COR
Security Exchange Name	NYSE
Entity Emerging Growth Company	false

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