Exhibit 3.2
BY-LAWS
of
EXPRESS SCRIPTS HOLDING COMPANY
dated as of December 20, 2018
TABLE OF CONTENTS
ARTICLE I
OFFICES
SECTION 1.
|
REGISTERED OFFICE
|
4
|
SECTION 2.
|
OTHER OFFICES
|
4
|
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1.
|
ANNUAL MEETINGS
|
4
|
SECTION 2.
|
SPECIAL MEETINGS
|
4
|
SECTION 3.
|
VOTING
|
4
|
SECTION 4.
|
QUORUM
|
5
|
SECTION 5.
|
NOTICE OF MEETINGS
|
5
|
SECTION 6.
|
ACTION WITHOUT MEETING
|
5
|
ARTICLE III
DIRECTORS
SECTION 1.
|
NUMBER AND TERM
|
5
|
SECTION 2.
|
RESIGNATIONS
|
5
|
SECTION 3.
|
VACANCIES
|
6
|
SECTION 4.
|
REMOVAL
|
6
|
SECTION 5.
|
COMMITTEES
|
6
|
SECTION 6.
|
MEETINGS
|
6
|
SECTION 7.
|
QUORUM
|
6
|
SECTION 8.
|
COMPENSATION
|
7
|
SECTION 9.
|
ACTION WITHOUT MEETING
|
7
|
ARTICLE IV
OFFICERS
SECTION 1.
|
OFFICERS
|
7
|
SECTION 2.
|
PRESIDENT
|
7
|
SECTION 3.
|
VICE PRESIDENTS
|
7
|
SECTION 4.
|
TREASURER
|
7
|
SECTION 5.
|
SECRETARY
|
8
|
SECTION 6.
|
ASSISTANT TREASURERS AND ASSISTANT SECRETARIES
|
8
|
SECTION 1.
|
CERTIFICATES OF STOCK
|
8
|
SECTION 2.
|
LOST CERTIFICATES
|
8
|
SECTION 3.
|
TRANSFER OF SHARES
|
8
|
SECTION 4.
|
STOCKHOLDERS RECORD DATE
|
9
|
SECTION 5.
|
DIVIDENDS
|
9
|
SECTION 6.
|
FISCAL YEAR
|
9
|
SECTION 7.
|
CHECKS
|
9
|
SECTION 8.
|
NOTICE AND WAIVER OF NOTICE
|
10
|
ARTICLE VI
INDEMNIFICATION
SECTION 1.
|
INDEMNIFICATION
|
10
|
SECTION 2.
|
INDEMNIFICATION OF EMPLOYEES AND AGENTS
|
10
|
SECTION 3.
|
INSURANCE
|
10
|
ARTICLE VII
AMENDMENTS
ARTICLE I
OFFICES
SECTION 1.
REGISTERED OFFICE – The address, including street,
number, city, and county, of the registered office of Express Scripts Holding Company (the “Corporation”) in the State of Delaware is c/o the Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle, State of Delaware 19801; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Trust Company.
SECTION 2.
OTHER OFFICES – The Corporation may have other offices,
either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time select or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1.
ANNUAL MEETINGS – Annual meetings of stockholders for
the election of directors, and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution,
shall determine and as set forth in the notice of the meeting. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the
meeting.
SECTION 2.
SPECIAL MEETINGS – Special meetings of the stockholders
for any purpose or purposes may be called by the Chairman, the President or the Secretary, or by resolution of a majority of the Board of Directors.
SECTION 3.
VOTING – Each stockholder entitled to vote in accordance
with the terms of the Certificate of Incorporation of the Corporation and these By-Laws may vote in person or by proxy, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. All elections for
directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.
A complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, with the address of each, and the number
of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is entitled to be present.
SECTION 4.
QUORUM – Except as otherwise required by law, by the
Certificate of Incorporation of the Corporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding shares constituting a majority of the voting power of the Corporation shall constitute a quorum at all meetings of the
stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted
that might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.
SECTION 5.
NOTICE OF MEETINGS – Written notice, stating the place,
date and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat, at his or her address as it appears on the records of the Corporation, not less than ten nor more than
sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.
SECTION 6.
ACTION WITHOUT MEETING – Unless otherwise provided by
the Certificate of Incorporation of the Corporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1.
NUMBER AND TERM – The business and affairs of the
Corporation shall be managed under the direction of a Board of Directors which shall consist of not less than one person. The exact number of directors shall initially be three and may thereafter be fixed from time to time by the Board of
Directors. Directors shall be elected at the annual meeting of stockholders and each director shall be elected to serve until his or her successor shall be elected and shall qualify. A director need not be a stockholder.
SECTION 2.
RESIGNATIONS – Any director may resign at any time.
Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the Chairman, the President or the Secretary. The acceptance of a resignation shall not be
necessary to make it effective.
SECTION 3.
VACANCIES – If the office of any director becomes
vacant, the remaining directors in the office, though less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his or her successor shall be duly chosen. If
the office of any director becomes vacant and there are no remaining directors, the stockholders, by the affirmative vote of the holders of shares constituting a majority of the voting power of the Corporation, at a special meeting called for such
purpose, may appoint any qualified person to fill such vacancy.
SECTION 4.
REMOVAL – Except as hereinafter provided, any director
or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of the voting power entitled to vote for the election of directors, at an annual meeting or a special meeting called for the
purpose, and the vacancy thus created may be filled, at such meeting, by the affirmative vote of holders of shares constituting a majority of the voting power of the Corporation.
SECTION 5.
COMMITTEES – The Board of Directors may, by resolution
or resolutions passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more directors of the Corporation.
Any such committee, to the extent provided in the resolution of the Board of Directors, or in these By-Laws, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation.
SECTION 6.
MEETINGS – The newly elected directors may hold their
first meeting for the purpose of organization and the transaction of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may be fixed by consent of all the Directors.
Regular meetings of the Board of Directors may be held without notice at such places and times as shall be determined from time to time by
resolution of the Board of Directors.
Special meetings of the Board of Directors may be called by the Chairman or the President, or by the Secretary on the written request of any
director, on at least one day’s notice to each director (except that notice to any director may be waived in writing by such director) and shall be held at such place or places as may be determined by the Board of Directors, or as shall be stated in
the notice of the meeting.
Unless otherwise restricted by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or
any committee designated by the Board of Directors, may participate in any meeting of the Board of Directors or any committee thereof by means of a conference telephone or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
SECTION 7.
QUORUM – A majority of the Directors shall constitute a
quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice
thereof need be given other than by announcement at the meeting which shall be so adjourned. The vote of the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the
Certificate of Incorporation of the Corporation or these By-Laws shall require the vote of a greater number.
SECTION 8.
COMPENSATION – Directors shall not receive any stated
salary for their services as directors or as members of committees, but by resolution of the Board of Directors a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.
SECTION 9.
ACTION WITHOUT MEETING – Any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if a written consent thereto is signed by all members of the Board of Directors or of such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the Board of Directors or such committee.
ARTICLE IV
OFFICERS
SECTION 1.
OFFICERS – The officers of the Corporation shall be a
President, one or more Vice Presidents, a Treasurer and a Secretary, all of whom shall be elected by the Board of Directors and shall hold office until their successors are duly elected and qualified. In addition, the Board of Directors may elect
such Assistant Secretaries and Assistant Treasurers as it may deem proper. The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors.
SECTION 2.
PRESIDENT – The President shall be the Chief Operating
Officer of the Corporation. He or she shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. The President shall have the power to execute bonds, mortgages and other
contracts on behalf of the Corporation.
SECTION 3.
VICE PRESIDENTS – Each Vice President shall have such
powers and shall perform such duties as shall be assigned to him or her by the Board of Directors.
SECTION 4.
TREASURER – The Treasurer shall be the Chief Financial
Officer of the Corporation. He or she shall have the custody of the Corporate funds and securities and shall keep full and accurate account of receipts and disbursements in books belonging to the Corporation. He or she shall deposit all moneys and
other valuables in the name and to the credit of the Corporation in such depositaries as may be designated by the Board of Directors. He or she shall disburse the funds of the Corporation as may be ordered by the Board of Directors, the Chairman, or
the President, taking proper vouchers for such disbursements. He or she shall render to the Chairman, the President and Board of Directors at the regular meetings of the Board of Directors, or whenever they may request it, an account of all his or
her transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, he or she shall give the Corporation a bond for the faithful discharge of his or her duties in such amount and with such surety
as the Board of Directors shall prescribe.
SECTION 5.
SECRETARY – The Secretary shall give, or cause to be
given, notice of all meetings of stockholders and of the Board of Directors and all other notices required by law or by these By-Laws, and in case of his or her absence or refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the Chairman or the President, or by the Board of Directors, upon whose request the meeting is called as provided in these By-Laws. He or she shall record all the proceedings of the meetings of the Board of Directors, any
committees thereof and the stockholders of the Corporation in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him or her by the Board of Directors, the Chairman or the President.
SECTION 6.
ASSISTANT TREASURERS AND ASSISTANT SECRETARIES –
Assistant Treasurers and Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the Board of Directors.
ARTICLE V
MISCELLANEOUS
SECTION 1.
CERTIFICATES OF STOCK – Each stockholder shall be
entitled to a certificate of stock certifying the number of shares owned by such stockholder in the Corporation. Certificates of stock of the Corporation shall be of such form and device as the Board of Directors may from time to time determine.
SECTION 2.
LOST CERTIFICATES – A new certificate of stock may be
issued in the place of any certificate theretofore issued by the Corporation, alleged to have been lost or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or such owner’s legal
representatives, to give the Corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss of any such
certificate, or the issuance of any such new certificate.
SECTION 3.
TRANSFER OF SHARES – The shares of stock of the
Corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the Corporation by the delivery
thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the Board of Directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of
each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.
SECTION 4.
STOCKHOLDERS RECORD DATE – In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor less than ten days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a
meeting, shall not be more than ten days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty days prior to such other action. If
no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting when no prior action of the
Board of Directors is required by law, shall be the first day on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, or, if prior action by the Board
of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 5.
DIVIDENDS – Subject to the provisions of the Certificate
of Incorporation of the Corporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon stock of the Corporation as and when they deem appropriate. Before declaring any
dividend there may be set apart out of any funds of the Corporation available for dividends, such sum or sums as the Board of Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies
or for equalizing dividends or for such other purposes as the Board of Directors shall deem conducive to the interests of the Corporation.
SECTION 6.
FISCAL YEAR – The fiscal year of the Corporation shall
be determined by resolution of the Board of Directors.
SECTION 7.
CHECKS – All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, or agent or agents, of the Corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
SECTION 8.
NOTICE AND WAIVER OF NOTICE – Whenever any notice is
required to be given under these By-Laws, personal notice is not required unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to
the person entitled thereto at his or her address as it appears on the records of the Corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive
notice of any meetings except as otherwise provided by law. Whenever any notice is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation of the Corporation or of these By-Laws, a waiver
thereof, in writing and signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such required notice.
ARTICLE VI
INDEMNIFICATION
SECTION 1.
INDEMNIFICATION – The Corporation, to the fullest extent
permitted by the Delaware General Corporation Law, including, without limitation, to the fullest extent permitted by Section 145 of the same (as that section may be amended and supplemented from time to time), shall have the power to indemnify any
director or officer of the Corporation against any expenses, liabilities or other matters referred to in or covered by that Section. The indemnification provided for in this Article VI (i) shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under these By-Laws, agreement or vote of stockholders or disinterested directors or otherwise, both as to action in their official capacities and as to action in another capacity while holding such office, (ii)
shall continue as to a person who has ceased to be a director or officer and (iii) shall inure to the benefit of the heirs, executors and administrators of such person.
SECTION 2.
INDEMNIFICATION OF EMPLOYEES AND AGENTS – The Board of
Directors in its discretion shall have the power on behalf of the Corporation to indemnify any person, other than a director or officer, made a party to any action, suit or proceeding by reason of the fact that such person, or such person’s testator
or intestate, is or was an employee or agent of the Corporation.
SECTION 3.
INSURANCE – The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability
under the provisions of the Delaware General Corporation Law.
ARTICLE VII
AMENDMENTS
These By-Laws may be altered, amended or repealed at any annual meeting of the stockholders (or at any special meeting thereof if notice of
such proposed alteration, amendment or repeal to be considered is contained in the notice of such special meeting) by the affirmative vote of the holders of shares constituting a majority of the voting power of the Corporation. Except as otherwise
provided in the Certificate of Incorporation of the Corporation, the Board of Directors may by majority vote of those present at any meeting at which a quorum is present alter, amend or repeal these By-Laws, or enact such other By-Laws as in their
judgment may be advisable for the regulation and conduct of the affairs of the Corporation.
-8-
Exhibit 4.4
TWENTY-FIFTH SUPPLEMENTAL INDENTURE
The Twenty-Fifth Supplemental Indenture, dated as of December 20, 2018 (this “
Twenty-Fifth Supplemental Indenture
”), among CIGNA CORPORATION (formerly known as Halfmoon Parent Inc.) (the “
Parent Guarantor
”), a corporation
organized and existing under the laws of the State of Delaware, EXPRESS SCRIPTS HOLDING COMPANY, a corporation organized and existing under the laws of the State of Delaware (the “
Company
”)
and a direct Subsidiary of the Parent and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the “
Trustee
”).
RECITALS:
WHEREAS, the Company, the Guarantors, and the Trustee are parties to an Indenture, dated as of November 21, 2011 (the “
Base Indenture
” and, as amended, supplemented and otherwise modified on or prior to the date hereof, including by this Twenty-Fifth Supplemental Indenture, the “
Indenture
”), relating to the issuance from time to time by the Company of its Securities on terms specified at the time of issuance;
WHEREAS, each of (a) that certain Section 7.1(9) of (1) that certain Third Supplemental Indenture to the Base Indenture, dated as of
November 21, 2011 (the “
Third Supplemental Indenture
”), relating to the 4.750% Senior Notes due 2021, (2) that certain Fourth Supplemental Indenture to the Base Indenture,
dated as of November 21, 2011 (the “
Fourth Supplemental Indenture
”), relating to the 6.125% Senior Notes due 2041 and (3) that certain Seventh Supplemental Indenture to
the Base Indenture, dated as of February 9, 2012 (the “
Seventh Supplemental Indenture
”), relating to the 3.900% Senior Notes due 2022 and (b) Section 5.1(9) of (1) that
certain Twelfth Supplemental Indenture to the Base Indenture, dated as of June 5, 2014 (the “
Twelfth Supplemental Indenture
”), relating to the 2.25% Senior Notes due 2019,
(2) that certain Thirteenth Supplemental Indenture to the Base Indenture, dated as of June 5, 2014 (the “
Thirteenth Supplemental Indenture
”), relating to the 3.50% Senior
Notes due 2024, (3) that certain Sixteenth Supplemental Indenture to the Base Indenture, dated as of February 25, 2016 (the “
Sixteenth Supplemental Indenture
”), relating
to the 3.300% Senior Notes due 2021, (4) that certain Seventeenth Supplemental Indenture to the Base Indenture, dated as of February 25, 2016 (the “
Seventeenth Supplemental Indenture
”),
relating to the 4.500% Senior Notes due 2026, (5) that certain Eighteenth Supplemental Indenture to the Base Indenture, dated as of July 5, 2016 (the “
Eighteenth Supplemental
Indenture
”), relating to the 3.000% Senior Notes due 2023, (6) that certain Nineteenth Supplemental Indenture to the Base Indenture, dated as of July 5, 2016 (the “
Nineteenth
Supplemental Indenture
”), relating to the 3.400% Senior Notes due 2027, (7) that certain Twentieth Supplemental Indenture to the Base Indenture, dated as of July 5, 2016 (the “
Twentieth Supplemental Indenture
”), relating to the 4.800% Senior Notes due 2046, (8) that certain Twenty-Second Supplemental Indenture to the Base Indenture, dated as of November 30, 2017 (the “
Twenty-Second Supplemental Indenture
”), relating to the 2.600% Senior Notes due 2020, (9) that certain Twenty-Third Supplemental Indenture to the Base Indenture, dated as of November 30, 2017
(the “
Twenty-Third Supplemental Indenture
”), relating to the Floating Rate Notes due 2020 and (10) that certain Twenty-Fourth Supplemental Indenture to the Base Indenture,
dated as of November 30, 2017 (the “
Twenty-Fourth Supplemental Indenture
” and, together with the Third Supplemental Indenture, the Fourth Supplemental Indenture, the
Seventh Supplemental Indenture, the Twelfth Supplemental Indenture, the Thirteenth Supplemental Indenture, the Sixteenth Supplemental Indenture, the Seventeenth Supplemental Indenture, the Eighteenth Supplemental Indenture, the Nineteenth
Supplemental Indenture, the Twentieth Supplemental Indenture, the Twenty-Second Supplemental Indenture and the Twenty-Third Supplemental Indenture, the “
Supplemental Indentures
”),
relating to the 3.050% Senior Notes due 2022 (together with the 4.750% Senior Notes due 2021, the 6.125% Senior Notes due 2041, the 3.900% Senior Notes due 2022, the 2.25% Senior Notes due 2019, the 3.50% Senior Notes due 2024, the 3.300% Senior
Notes due 2021, the 4.500% Senior Notes due 2026, the 3.000% Senior Notes due 2023, the 3.400% Senior Notes due 2027, the 4.800% Senior Notes due 2046, the 2.600% Senior Notes due 2020 and the Floating Rate Notes due 2020, the “
Notes
”), provides that the Company and the Trustee may enter into a supplemental indenture to make any amendment or supplement to the Base Indenture, the applicable
Supplemental Indenture and the terms of the Notes issued thereunder, as long as that amendment or supplement does not adversely affect the interests of the Holders of any of the applicable Notes in any material respect (in each case to be evidenced
by an Opinion of Counsel);
WHEREAS, the Parent Guarantor is not under any obligation to guarantee any of the Company’s obligations under the Notes or the Indenture
but desires to guarantee unconditionally all of the Company’s obligations under the Notes and the Indenture pursuant to a guarantee on the terms and conditions set forth herein; and
WHEREAS, all conditions and requirements of the Indenture necessary to make this Twenty-Fifth Supplemental Indenture a valid, binding and
legal instrument in accordance with its terms have been performed and fulfilled by the parties hereto.
NOW THEREFORE, for and in consideration of the premises and other good and valuable consideration, receipt of which is hereby acknowledged
by the parties hereto, the Parent Guarantor, the Company and the Trustee agree as follows:
ARTICLE I
PARENT GUARANTEE
Section 1.01
Parent Guarantee
.
(a)
The Parent Guarantor, as primary obligor and not merely
as surety, hereby irrevocably and fully and unconditionally guarantees to each Holder of the Notes and to the Trustee and its successor and assigns (the “
Parent Guarantee
”)
on an unsecured, unsubordinated basis and equal in right of payment to all existing and future unsecured, unsubordinated indebtedness of the Parent Guarantor, the punctual payment when due of all monetary obligations of the Company under the
Indenture and the Notes, whether for principal of or interest on the Notes. The obligations of the Parent Guarantor hereunder shall be joint and several with the obligations of the other Guarantors pursuant to their Guarantees under the Indenture.
(b)
The obligations of the Parent Guarantor shall be limited
to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of the Parent Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or
unenforceable under any law relating to insolvency of debtors.
(c)
The Parent Guarantor further agrees that (to the fullest
extent permitted by law) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Indenture, the Notes or the obligations of the Company or any other Guarantor hereunder or thereunder, the
absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same,
or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of the Parent Guarantor.
(d)
The Parent Guarantor hereby waives (to the fullest
extent permitted by law) the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that (except as otherwise provided in
Section 1.03
) the Parent Guarantee shall not be discharged except by complete performance
of the obligations contained in the Notes, the Indenture and the Parent Guarantee. The Parent Guarantee is a guarantee of payment and not of collection.
Section 1.02
Continuing Parent Guarantee
.
(a)
The Parent Guarantee shall be a continuing guarantee and
shall, subject to
Section 1.03
, (i) remain in full force and effect until payment in full of the principal amount of all Outstanding Notes (whether by payment at
maturity, purchase, redemption, defeasance, retirement or other acquisition), (ii) be binding upon the Parent Guarantor and (iii) inure to the benefit of and be enforceable by the Trustee, the Holders and their permitted successors, transferees and
assigns.
(b)
The obligations of the Parent Guarantor hereunder shall
continue to be effective or shall be reinstated, as the case may be, if at any time any payment which would otherwise have reduced or terminated the obligations of the Parent Guarantor hereunder and under the Parent Guarantee (whether such payment
shall have been made by or on behalf of the Company or by or on behalf of the Parent Guarantor) is rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation or reorganization of the Company or the Parent Guarantor
or otherwise, all as though such payment had not been made.
Section 1.03
Release of Parent Guarantee
.
(a)
The Parent Guarantor will be automatically and
unconditionally released from its obligations under the Indenture and with respect to the Parent Guarantee (any of the following, a “
Parent Guarantee Release Condition
”):
(i)
with respect to any series of Notes,
as applicable, if the Company exercises its legal defeasance option or its covenant defeasance option as described in Sections 12.2 and 12.3, respectively, of the Base Indenture with respect to such series of Notes or if the Company’s obligations
under the Indenture are discharged in accordance with the terms of the Indenture in respect of such series of Notes;
(ii)
with respect to all series of Notes,
on the date upon which the Company ceases to be a Subsidiary of the Parent Guarantor that is organized or established under the laws of the United States of America, any state thereof or the District of Columbia, or upon the conveyance, transfer or
lease of all or substantially all of the properties and assets of the Company to another Person (other than to any Subsidiary of the Parent Guarantor that is organized or established under the laws of the United States of America, any state thereof
or the District of Columbia);
(iii)
with respect to all series of Notes,
upon either (x) the substantially simultaneous termination, release or discharge of indebtedness for borrowed money of the Company or Cigna Holding Company (formerly known as Cigna Corporation), a Delaware corporation (“
CHC
”) (including any release or discharge that would be conditioned on the termination, release or discharge of any guarantee or indebtedness for borrowed money) or (y) any other event or
circumstance, in each case, as a result of which or upon which the aggregate principal amount of indebtedness for borrowed money issued or borrowed by the Company and CHC (collectively) constitutes no more than 20.0% of the aggregate principal
amount of indebtedness for borrowed money of the Parent Guarantor and its Subsidiaries, on a consolidated basis, as of such time; or
(iv)
with respect to all series of Notes,
upon the release of the Company’s guarantee pursuant to Section 3 of that certain Supplemental Indenture No. 2, dated as of December 20, 2018, among CHC, the Company, the Parent Guarantor and U.S. Bank National Association, as trustee, to that
certain Indenture, dated as of September 17, 2018, between the Parent Guarantor and U.S. Bank National Association, as supplemented by that certain Supplemental Indenture No. 1, dated as of September 17, 2018.
(b)
At the request of the Company or the Parent Guarantor,
and upon delivery to the Trustee of an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent under the Indenture relating to such release have been complied with, the Trustee will execute any documents
reasonably requested by the Company or the Parent Guarantor evidencing such release.
(c)
If the Parent Guarantor is released from its
obligations hereunder pursuant to this Section 1.03, it shall cease to be the “Parent Guarantor” as defined in and for purposes hereof.
(d)
For the avoidance of doubt, the terms of Section
1.03(a)(ii) hereof shall be interpreted in a manner consistent with that set forth in Section 8.1(2) of the Base Indenture.
Section 1.04
Notation Not Required
. Neither the Company nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any release thereof.
Section 1.05
Waiver of Subrogation
. The Parent Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or
enforcement of the Parent Guarantor’s obligations under the Parent Guarantee and the Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Notes against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights in relation to the Trustee until all monetary obligations of the Company under the Indenture and the Notes,
whether for principal of or interest on the Notes, are paid in full. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence and the Notes shall not have been paid in full, such amount shall have been deemed to
have been paid to the Parent Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Notes, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon the Notes, whether
matured or unmatured, in accordance with the terms of the Indenture. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the waiver set forth in
this Section is knowingly made in contemplation of such benefits.
Section 1.06
Notices
. Notice to the Parent Guarantor shall be sufficient if addressed to the Parent Guarantor care of the Company at the address, place and manner provided in
Section 1.5
of the Base Indenture.
ARTICLE II
MISCELLANEOUS
Section 2.01
Integral Part; Effect of Supplement on Indenture
. This Twenty-Fifth Supplemental Indenture constitutes an integral part of the Indenture. Except for the amendments and supplements made by this Twenty-Fifth
Supplemental Indenture, the Base Indenture shall remain in full force and effect as executed.
Section 2.02
Capitalized Terms
. For purposes of this Twenty-Fifth Supplemental Indenture:
(a)
Capitalized terms used herein without definition shall
have the meanings assigned to them in the Base Indenture;
(b)
All references to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of the Base Indenture; and
(c)
The terms “herein,” hereof,” “hereunder” and other words
of similar import refer to this Twenty-Fifth Supplemental Indenture.
Section 2.03
Adoption, Ratification and Confirmation
. The Indenture, as supplemented by this Twenty-Fifth Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.
Section 2.04
Trustee Not Responsible for Recitals
. The recitals in this Twenty-Fifth Supplemental Indenture are made by the Company, and the Trustee assumes no responsibility for the correctness of such recitals. The Trustee makes
no representations as to the validity or sufficiency of this Twenty-Fifth Supplemental Indenture.
Section 2.05
Counterparts
. This Twenty-Fifth Supplemental Indenture may be executed in multiple counterparts, each of which shall be regarded for all purposes as an original and all of which shall constitute but one and the same
instrument.
Section 2.06
Governing Law
. This Twenty-Fifth Supplemental Indenture and the Parent Guarantee hereunder shall be governed by and construed in accordance with the laws of the State of New York.
Section 2.07
Conflict with Trust Indenture Act
. If any provision of this Twenty-Fifth Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be part of and govern this Twenty-Fifth Supplemental Indenture, the latter provision shall control. If any provision of this Twenty-Fifth Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to the Twenty-Fifth Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 2.08
FATCA
. The Company confirms to the Trustee it has no knowledge that this Supplemental Indenture has resulted in a material modification of the Notes for purposes of Sections 1471 through 1474 of the Code (“FATCA”). The
Company shall give the Trustee prompt written notice of any material modification of the Notes deemed to occur for FATCA purposes of which it has knowledge. The Trustee shall assume that no material modification for FATCA purposes has occurred
regarding the Notes to the knowledge of the Company, unless the Trustee receives written notice of such modification from the Company.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties hereto have caused this Twenty-Fifth Supplemental Indenture to be duly executed as of the date first above
written.
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CIGNA CORPORATION
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By:
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/s/ Timothy D. Buckley
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Name:
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Timothy D. Buckley
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Title:
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Vice President and Treasurer
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EXPRESS SCRIPTS HOLDING COMPANY
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Name:
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Bradley Phillips
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Title:
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Vice President and Assistant Treasurer
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WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
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By:
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/s/ Raymond Delli Colli
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Name:
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Raymond Delli Colli
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Title:
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Vice President
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[
Signature Page to Twenty-Fifth Supplemental Indenture (ESH)
]
Exhibit 4.5
NINTH SUPPLEMENTAL INDENTURE
The Ninth Supplemental Indenture, dated as of December 20, 2018 (this “
Supplemental
Indenture No. 9
”), among CIGNA CORPORATION (formerly known as Halfmoon Parent, Inc.) (the “
Parent Guarantor
”), a corporation organized and existing under
the laws of the State of Delaware, EXPRESS SCRIPTS, INC. (the “
Company
”), a corporation organized and existing under the laws of the State of Delaware and MUFG Union Bank,
N.A. (as successor to Union Bank, N.A.), as trustee (the “
Trustee
”).
RECITALS:
WHEREAS, the Company and the Trustee are parties to the Indenture, dated as of June 9, 2009 (the “
Base Indenture
” and, as amended, supplemented and otherwise modified on or prior to the date hereof, including by this Ninth Supplemental Indenture, the “
Indenture
”), relating to the issuance from time to time by the Company of its Securities on terms specified at the time of issuance;
WHEREAS, the Company has issued pursuant to the Third Supplemental Indenture, dated as of June 9, 2009 (“
Third Supplemental Indenture
”), relating to the Base Indenture its 7.250% Senior Notes due 2019 (the “
Notes
”);
WHEREAS, Section 7.01(9) of the Third Supplemental Indenture provides that the Company and the Trustee may make any amendment or supplement
to the Base Indenture, the Third Supplemental Indenture or the Notes as long as that amendment or supplement does not adversely affect the interests of the Holders of any Notes in any material respect;
WHEREAS, the Parent Guarantor is not under any obligation to guarantee any of the Company’s obligations under the Notes or the Indenture
but desires to guarantee unconditionally all of the Company’s obligations under the Notes and the Indenture pursuant to a guarantee on the terms and conditions set forth herein; and
WHEREAS, all conditions and requirements of the Indenture necessary to make this Ninth Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and fulfilled by the parties hereto.
NOW THEREFORE, for and in consideration of the premises and other good and valuable consideration, receipt of which is hereby acknowledged
by the parties hereto, the Parent Guarantor, the Company and the Trustee agree as follows:
ARTICLE I
PARENT GUARANTEE
Section 1.01
Parent Guarantee
.
(a)
The Parent Guarantor, as primary obligor and not merely
as surety, hereby irrevocably and fully and unconditionally guarantees to each Holder of the Notes and to the Trustee and its successor and assigns (the “
Parent Guarantee
”)
on an unsecured, unsubordinated basis and equal in right of payment to all existing and future unsecured, unsubordinated indebtedness of the Parent Guarantor, the punctual payment when due of all monetary obligations of the Company under the
Indenture and the Notes, whether for principal of or interest on the Notes. The obligations of the Parent Guarantor hereunder shall be joint and several with the obligations of the other Guarantors pursuant to their Guarantees under the Indenture.
(b)
The obligations of the Parent Guarantor shall be limited
to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of the Parent Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or
unenforceable under any law relating to insolvency of debtors.
(c)
The Parent Guarantor further agrees that (to the fullest
extent permitted by law) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Indenture, the Notes or the obligations of the Company or any other Guarantor hereunder or thereunder, the
absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same,
or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of the Parent Guarantor.
(d)
The Parent Guarantor hereby waives (to the fullest
extent permitted by law) the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that the Parent Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, the Indenture and the Parent Guarantee. The Parent Guarantee is a guarantee of
payment and not of collection.
Section 1.02
Continuing Parent Guarantee
.
(a)
The Parent Guarantee shall be a continuing guarantee and
shall (i) remain in full force and effect until payment in full of the principal amount of all Outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition), (ii) be binding upon the Parent
Guarantor and (iii) inure to the benefit of and be enforceable by the Trustee, the Holders and their permitted successors, transferees and assigns.
(b)
The obligations of the Parent Guarantor hereunder shall
continue to be effective or shall be reinstated, as the case may be, if at any time any payment which would otherwise have reduced or terminated the obligations of the Parent Guarantor hereunder and under the Parent Guarantee (whether such payment
shall have been made by or on behalf of the Company or by or on behalf of the Parent Guarantor) is rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation or reorganization of the Company or the Parent Guarantor
or otherwise, all as though such payment had not been made.
Section 1.03
[Reserved]
.
Section 1.04
Notation Not Required
. Neither the Company nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any release thereof.
Section 1.05
Waiver of Subrogation
. The Parent Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or
enforcement of the Parent Guarantor’s obligations under the Parent Guarantee and the Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Notes against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights in relation to the Trustee until all monetary obligations of the Company under the Indenture and the Notes,
whether for principal of or interest on the Notes, are paid in full. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence and the Notes shall not have been paid in full, such amount shall have been deemed to
have been paid to the Parent Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Notes, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon the Notes, whether
matured or unmatured, in accordance with the terms of the Indenture. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the waiver set forth in
this Section is knowingly made in contemplation of such benefits.
Section 1.06
Notices
. Notice to the Parent Guarantor shall be sufficient if addressed to the Parent Guarantor care of the Company at the address, place and manner provided in
Section 105
of the Base Indenture.
ARTICLE II
MISCELLANEOUS
Section 2.01
Integral Part; Effect of Supplement on Indenture
. This Ninth Supplemental Indenture constitutes an integral part of the Indenture. Except for the amendments and supplements made by this Ninth Supplemental Indenture,
the Base Indenture shall remain in full force and effect as executed.
Section 2.02
Capitalized Terms
. For purposes of this Ninth Supplemental Indenture:
(a)
Capitalized terms used herein without definition shall
have the meanings assigned to them in the Base Indenture;
(b)
All references to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of the Base Indenture; and
(c)
The terms “herein,” hereof,” “hereunder” and other words
of similar import refer to this Ninth Supplemental Indenture.
Section 2.03
Adoption, Ratification and Confirmation
. The Indenture, as supplemented by this Ninth Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.
Section 2.04
Trustee Not Responsible for Recitals
. The recitals in this Ninth Supplemental Indenture are made by the Company, and the Trustee assumes no responsibility for the correctness of such recitals. The Trustee makes no
representations as to the validity or sufficiency of this Ninth Supplemental Indenture.
Section 2.05
Counterparts
. This Ninth Supplemental Indenture may be executed in multiple counterparts, each of which shall be regarded for all purposes as an original and all of which shall constitute but one and the same
instrument.
Section 2.06
Governing Law
. This Ninth Supplemental Indenture and the Parent Guarantee hereunder shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws principles
thereof.
Section 2.07
Conflict with Trust Indenture Act
. If any provision of this Ninth Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act that is required under the Trust Indenture Act to be
part of and govern this Ninth Supplemental Indenture, the latter provision shall control. If any provision of this Ninth Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to the Ninth Supplemental Indenture as so modified or to be excluded, as the case may be.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties hereto have caused this Ninth Supplemental Indenture to be duly executed as of the date first above
written.
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By:
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/s/ Timothy D. Buckley
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Name:
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Timothy D. Buckley
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Title:
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Vice President and Treasurer
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Name:
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Bradley Phillips
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Title:
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Vice President
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MUFG Union Bank, N.A., AS TRUSTEE
|
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Name:
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Marion Zinowski
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Title:
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Vice President
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[
Signature Page to Ninth Supplemental Indenture (ESI-MUFG)
]
Exhibit 4.6
SECOND SUPPLEMENTAL INDENTURE
The Second Supplemental Indenture, dated as of December 20, 2018 (this “
Second
Supplemental Indenture
”), among CIGNA CORPORATION (formerly known as Halfmoon Parent, Inc.) (the “
Parent Guarantor
”), a corporation organized and existing
under the laws of the State of Delaware, MEDCO HEALTH SOLUTIONS, INC. (the “
Company
”), a corporation organized and existing under the laws of the State of Delaware and
U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association, as trustee (the “
Trustee
”).
RECITALS:
WHEREAS, the Company and the Trustee are parties to the Indenture, dated as of March 18, 2008 (the “
Base Indenture
” and, as amended, supplemented and otherwise modified on or prior to the date hereof, including by this Second Supplemental Indenture, the “
Indenture
”), relating to the issuance from time to time by the Company of its Securities on terms specified at the time of issuance;
WHEREAS, the Company has issued pursuant to the Base Indenture its 4.125% Senior Notes due 2020 (the “
Notes
”);
WHEREAS, Section 901(9) of Base Indenture provides that the Company and the Trustee may make any provision with respect to matters or
questions arising under the Indenture provided that such action does not does not adversely affect the interests of the Holders of Securities of any series in any material respect;
WHEREAS, the Parent Guarantor is not under any obligation to guarantee any of the Company’s obligations under the Notes or the Indenture
but desires to guarantee unconditionally all of the Company’s obligations under the Notes and the Indenture pursuant to a guarantee on the terms and conditions set forth herein; and
WHEREAS, all conditions and requirements of the Indenture necessary to make this Second Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and fulfilled by the parties hereto.
NOW THEREFORE, for and in consideration of the premises and other good and valuable consideration, receipt of which is hereby acknowledged
by the parties hereto, the Parent Guarantor, the Company and the Trustee agree as follows:
ARTICLE I
PARENT GUARANTEE
Section 1.01
Parent Guarantee
.
(a)
The Parent Guarantor, as primary obligor and not merely
as surety, hereby irrevocably and fully and unconditionally guarantees to each Holder of the Notes and to the Trustee and its successor and assigns (the “
Parent Guarantee
”)
on an unsecured, unsubordinated basis and equal in right of payment to all existing and future unsecured, unsubordinated indebtedness of the Parent Guarantor, the punctual payment when due of all monetary obligations of the Company under the
Indenture and the Notes, whether for principal of or interest on the Notes. The obligations of the Parent Guarantor hereunder shall be joint and several with the obligations of the other Guarantors pursuant to their Guarantees under the Indenture.
(b)
The obligations of the Parent Guarantor shall be limited
to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of the Parent Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or
unenforceable under any law relating to insolvency of debtors.
(c)
The Parent Guarantor further agrees that (to the fullest
extent permitted by law) its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Indenture, the Notes or the obligations of the Company or any other Guarantor hereunder or thereunder, the
absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same,
or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of the Parent Guarantor.
(d)
The Parent Guarantor hereby waives (to the fullest
extent permitted by law) the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that the Parent Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, the Indenture and the Parent Guarantee. The Parent Guarantee is a guarantee of
payment and not of collection.
Section 1.02
Continuing Parent Guarantee
.
(a)
The Parent Guarantee shall be a continuing guarantee and
shall (i) remain in full force and effect until payment in full of the principal amount of all Outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition), (ii) be binding upon the Parent
Guarantor and (iii) inure to the benefit of and be enforceable by the Trustee, the Holders and their permitted successors, transferees and assigns.
(b)
The obligations of the Parent Guarantor hereunder shall
continue to be effective or shall be reinstated, as the case may be, if at any time any payment which would otherwise have reduced or terminated the obligations of the Parent Guarantor hereunder and under the Parent Guarantee (whether such payment
shall have been made by or on behalf of the Company or by or on behalf of the Parent Guarantor) is rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation or reorganization of the Company or the Parent Guarantor
or otherwise, all as though such payment had not been made.
Section 1.03
[Reserved]
.
Section 1.04
Notation Not Required
. Neither the Company nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any release thereof.
Section 1.05
Waiver of Subrogation
. The Parent Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or
enforcement of the Parent Guarantor’s obligations under the Parent Guarantee and the Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Notes against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights in relation to the Trustee until all monetary obligations of the Company under the Indenture and the Notes,
whether for principal of or interest on the Notes, are paid in full. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence and the Notes shall not have been paid in full, such amount shall have been deemed to
have been paid to the Parent Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Notes, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon the Notes, whether
matured or unmatured, in accordance with the terms of the Indenture. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the waiver set forth in
this Section is knowingly made in contemplation of such benefits.
Section 1.06
Notices
. Notice to the Parent Guarantor shall be sufficient if addressed to the Parent Guarantor care of the Company at the address, place and manner provided in
Section 105
of the Base Indenture.
ARTICLE II
MISCELLANEOUS
Section 2.01
Integral Part; Effect of Supplement on Indenture
. This Second Supplemental Indenture constitutes an integral part of the Indenture. Except for the amendments and supplements made by this Second Supplemental Indenture,
the Base Indenture shall remain in full force and effect as executed.
Section 2.02
Capitalized Terms
. For purposes of this Second Supplemental Indenture:
(a)
Capitalized terms used herein without definition shall
have the meanings assigned to them in the Base Indenture;
(b)
All references to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of the Base Indenture; and
(c)
The terms “herein,” hereof,” “hereunder” and other words
of similar import refer to this Second Supplemental Indenture.
Section 2.03
Adoption, Ratification and Confirmation
. The Indenture, as supplemented by this Second Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.
Section 2.04
Trustee Not Responsible for Recitals
. The recitals in this Second Supplemental Indenture are made by the Company, and the Trustee assumes no responsibility for the correctness of such recitals. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental Indenture.
Section 2.05
Counterparts
. This Second Supplemental Indenture may be executed in multiple counterparts, each of which shall be regarded for all purposes as an original and all of which shall constitute but one and the same
instrument.
Section 2.06
Governing Law
. This Second Supplemental Indenture and the Parent Guarantee hereunder shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws
principles thereof.
Section 2.07
Conflict with Trust Indenture Act
. If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act that is required under the Trust Indenture Act to
be part of and govern this Second Supplemental Indenture, the latter provision shall control. If any provision of this Second Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to the Second Supplemental Indenture as so modified or to be excluded, as the case may be.
[
Signature Page Follows
]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the date first above
written.
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By:
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/s/ Timothy D. Buckley
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Name:
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Timothy D. Buckley
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Title:
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Vice President and Treasurer
|
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MEDCO HEALTH SOLUTIONS, INC.
|
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Name:
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Bradley Phillips
|
|
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Title:
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Vice President
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U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE
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Name:
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Gagendra Hiralal
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Title:
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Assistant Vice President
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[
Signature Page to Second
Supplemental Indenture (Medco-U.S. Bank)
]