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): February 10, 2012 (February 6, 2012)

 

 

Express Scripts, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   0-20199   43-1420563

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

One Express Way, St. Louis, MO   63121
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code 314-996-0900

Not Applicable

Former name or former address, if changed since last report

 

 

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))

 

 

 


Item 1.01. Entry into a Material Definitive Agreement

Purchase Agreement

On February 6, 2012, Express Scripts, Inc. (“Express Scripts”), Aristotle Holding, Inc., a wholly owned subsidiary of Express Scripts (“Aristotle”), and certain other subsidiaries of Express Scripts entered into a Purchase Agreement (the “Purchase Agreement”) with Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers named therein (collectively, the “Initial Purchasers”), relating to the sale by Aristotle to the Initial Purchasers of $1,000,000,0000 aggregate principal amount of its 2.100% Senior Notes due 2015 (the “2015 Notes”), $1,500,000,000 aggregate principal amount of its 2.650% Senior Notes due 2017 (the “2017 Notes”) and $1,000,000,000 aggregate principal amount of its 3.900% Senior Notes due 2022 (the “2022 Notes,” and together with the 2015 Notes and the 2017 Notes, the “Notes”). Pursuant to the terms of the Purchase Agreement, Aristotle has agreed to sell to the Initial Purchasers (i) the 2015 Notes at a purchase price of 99.108% of the principal amount thereof, (ii) the 2017 Notes at a purchase price of 98.425% of the principal amount thereof and (iii) the 2022 Notes at a purchase price of 97.197% of the principal amount thereof.

The Purchase Agreement contains customary representations and warranties, conditions to closing, indemnification rights, obligations of the parties and termination provisions.

The Purchase Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. This description of the material terms of the Purchase Agreement is qualified in its entirety by reference to such exhibit.

The Initial Purchasers and their affiliates have, from time to time, performed, and may in the future perform, various financial advisory and investment banking services for Express Scripts, Aristotle and Express Scripts’ other subsidiaries, for which they received or will receive customary fees and expenses. In addition, Wells Fargo Bank, National Association (the “Trustee”), an affiliate of Wells Fargo Securities, LLC, one of the Initial Purchasers, serves as the trustee under the indenture governing the Notes.

Supplemental Indentures

The 2015 Notes were issued pursuant to the Indenture (the “Base Indenture”), dated as of November 21, 2011, by and among Aristotle, Express Scripts, certain other subsidiaries of Express Scripts and the Trustee (collectively, the “Indenture Parties”), as supplemented by the Fifth Supplemental Indenture, dated as of February 9, 2012, among the Indenture Parties (the “First Supplemental Indenture”). The Fifth Supplemental Indenture includes a form of 2015 Note and a form of Exchange Note (as defined below).

The 2017 Notes were issued pursuant to the Base Indenture, as supplemented by the Sixth Supplemental Indenture, dated as of February 9, 2012, among the Indenture Parties (the “Second Supplemental Indenture”). The Second Supplemental Indenture includes a form of 2017 Note and a form of Exchange Note.

 

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The 2022 Notes were issued pursuant to the Base Indenture, as supplemented by the Seventh Supplemental Indenture, dated as of February 9, 2012, among the Indenture Parties (the “Seventh Supplemental Indenture” and, together with the Fifth Supplemental Indenture and the Sixth Supplemental Indenture, the “Supplemental Indentures”). The Seventh Supplemental Indenture includes a form of 2022 Note and a form of Exchange Note.

The 2015 Notes will mature on February 12, 2015, the 2017 Notes will mature on February 15, 2017 and the 2022 Notes will mature on February 15, 2022. Aristotle will pay interest on the 2015 Notes on February 12 and August 12 of each year, commencing on August 12, 2012, at a rate of 2.100% per annum. Aristotle will pay interest on the 2017 Notes on February 15 and August 15 of each year, commencing on August 15, 2012, at a rate of 2.650% per annum. Aristotle will pay interest on the 2022 Notes on February 15 and August 15 of each year, commencing on August 15, 2012, at a rate of 3.900% per annum.

Express Scripts intends to use the net proceeds from the sale of the Notes to pay a portion of the cash consideration payable to stockholders of Medco Health Solutions, Inc. (“Medco”) in connection with the previously announced merger pursuant to which Express Scripts and Medco will each become wholly owned subsidiaries of Aristotle (the “Merger”), to repay any existing indebtedness that will be repaid in connection with the Merger and to pay related fees and expenses. In the event that Express Scripts does not consummate the Merger on or prior to April 20, 2012 (as such date may be extended in accordance with the terms of the Supplemental Indentures), or the merger agreement is terminated at any time prior thereto, Express Scripts is required, pursuant to the terms of the Supplemental Indentures, to redeem the Notes at a redemption price equal to 101% of the aggregate accreted principal amount of the Notes, plus accrued and unpaid interest from February 9, 2012 to but excluding the redemption date. The Notes will be jointly and severally and fully and unconditionally guaranteed on a senior basis by Express Scripts, certain of Express Scripts’ current wholly owned domestic subsidiaries and certain future wholly owned domestic subsidiaries of Express Scripts (prior to the consummation of the Mergers) and Aristotle (following the consummation of the Mergers).

The foregoing summary of the Supplemental Indentures does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Supplemental Indentures, copies of which are filed with this Form 8-K as Exhibits 4.1, 4.2 and 4.3 and are incorporated herein by reference.

Registration Rights

In connection with the issuance of the Notes, Express Scripts, Aristotle, certain other subsidiaries of Express Scripts and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the Initial Purchasers, entered into registration rights agreements with respect to each series of Notes, each dated as of February 9, 2012 (collectively, the “Registration Rights Agreements”). Under the Registration Rights Agreements, Aristotle has agreed to file registration statements with the Securities and Exchange Commission (the “SEC”) with respect to an offer to exchange each series of Notes for a new issue of debt securities (“Exchange Notes”) with terms substantially similar to such Notes (except the Exchange Notes will not contain terms with respect to transfer restrictions) and which will be registered under the Securities Act of 1933, as amended. Under the Registration Rights Agreements, Aristotle has

 

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also agreed, under specified circumstances, to file a shelf registration statement with the SEC covering resales of the Notes. Aristotle may be required to pay additional interest if it fails to comply with the registration and exchange requirements set forth in the Registration Rights Agreements.

The foregoing summary of the Registration Rights Agreements is qualified in its entirety by reference to the full text of the Registration Rights Agreements, copies of which are filed with this Form 8-K as Exhibits 10.2, 10.3 and 10.4 and are incorporated herein by reference.

Item 2.03. Creation of a Direct Financial Obligation of a Registrant

The information included in Item 1.01 above related to the Supplemental Indentures is incorporated by reference into this Item 2.03.

Item 7.01. Regulation FD Disclosure

On February 6, 2012, Express Scripts issued a press release announcing the pricing of the offering of the Notes. The press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

This information is furnished pursuant to Item 7.01 of Form 8-K and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.

Item 9.01. Financial Statements and Exhibits

(d) Exhibits

 

Exhibit
No.

  

Description

  4.1

   Fifth Supplemental Indenture, dated as of February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Wells Fargo Bank, National Association, as Trustee.

  4.2

   Sixth Supplemental Indenture, dated as of February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Wells Fargo Bank, National Association, as Trustee.

  4.3

   Seventh Supplemental Indenture, dated as of February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Wells Fargo Bank, National Association, as Trustee.

10.1

   Purchase Agreement, dated February 6, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., certain other subsidiaries of Express Scripts, Inc. party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers named therein.

 

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10.2

   Registration Rights Agreement, dated February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers of the 2015 Notes.

10.3

   Registration Rights Agreement, dated February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers of the 2017 Notes.

10.4

   Registration Rights Agreement, dated February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers of the 2022 Notes.

99.1

   Press Release, dated February 6, 2012.

 

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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.

 

Express Scripts, Inc.
(Registrant)
By:  

/s/ Keith Ebling

  Name:   Keith Ebling
  Title:   Executive Vice President and General Counsel

Dated: February 10, 2012

 

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EXHIBIT LIST

 

Exhibit
No.

  

Description

  4.1    Fifth Supplemental Indenture, dated as of February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Wells Fargo Bank, National Association, as Trustee.
  4.2    Sixth Supplemental Indenture, dated as of February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Wells Fargo Bank, National Association, as Trustee.
  4.3    Seventh Supplemental Indenture, dated as of February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Wells Fargo Bank, National Association, as Trustee.
10.1    Purchase Agreement, dated February 6, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., certain other subsidiaries of Express Scripts, Inc. party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers named therein.
10.2    Registration Rights Agreement, dated February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers of the 2015 Notes.
10.3    Registration Rights Agreement, dated February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers of the 2017 Notes.
10.4    Registration Rights Agreement, dated February 9, 2012, among Express Scripts, Inc., Aristotle Holding, Inc., the other subsidiaries of Express Scripts, Inc. party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several initial purchasers of the 2022 Notes.
99.1    Press Release, dated February 6, 2012.

 

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Exhibit 4.1

EXECUTION COPY

 

 

 

FIFTH SUPPLEMENTAL INDENTURE

Dated as of February 9, 2012

Supplementing that Certain

INDENTURE

Dated as of November 21, 2011

 

 

Among

ARISTOTLE HOLDING, INC.,

THE GUARANTORS PARTY HERETO

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee

 

 

2.100% SENIOR NOTES DUE 2015

 

 

 


This Fifth Supplemental Indenture, dated as of February 9, 2012 (the “ Fifth Supplemental Indenture ”), among Aristotle Holding, Inc., a corporation organized and existing under the laws of the State of Delaware, having its principal office at One Express Way, St. Louis, Missouri (herein called the “ Company ”), the Guarantors party hereto and Wells Fargo Bank, National Association, a national banking association, as Trustee hereunder (herein called the “ Trustee ”), supplements that certain Indenture, dated as of November 21, 2011, among the Company, the Guarantors and the Trustee (the “ Base Indenture ” and, together with this Fifth Supplemental Indenture, the “ Indenture ”).

RECITALS OF THE COMPANY

A. The Company, the Guarantors and the Trustee have entered into the Base Indenture, which provides for the issuance from time to time of the Company’s unsecured debentures, notes, or other evidences of indebtedness to be issued in one or more series as provided for in the Base Indenture.

B. The Base Indenture provides that the Securities of each series shall be in substantially the form set forth in the Base Indenture, or in such other form as may be established by or pursuant to a Board Resolution and set forth in an Officers’ Certificate or in one or more supplemental indentures thereto, in each case with such appropriate insertions, omissions, substitutions, and other variations as are required or permitted by the Indenture, and may have notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent therewith, be determined by the officers executing such Securities, as evidenced by their execution thereof.

C. The Company and the Trustee have agreed that the Company shall issue and deliver, and the Trustee shall authenticate, a new series of Securities to be known as the “2.100% Senior Notes due 2015” pursuant to the terms of this Fifth Supplemental Indenture and substantially in the form set forth in Appendix A hereto (together with the Exhibits thereto, the “ Appendix ”), in each case with such appropriate insertions, omissions, substitutions, and other variations as are required or permitted by the Indenture, and with such notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent herewith, be determined by the officers executing such Securities, as evidenced by their execution of such Securities.

ARTICLE I

Issuance of Securities

SECTION 1.1. Issuance of Securities; Principal Amount; Maturity; Title.

(1) On February 9, 2012, the Company shall issue and deliver to the Trustee, and the Trustee shall authenticate, the Initial Securities substantially in the form


set forth in the Appendix, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and with such notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent herewith, be determined by the officers executing such Securities, as evidenced by their execution of such Securities.

(2) Pursuant to the terms hereof and Section 3.1 of the Base Indenture, the Company hereby creates a series of Securities designated as the “2.100% Senior Notes due 2015” of the Company (including both the Initial Securities and any Additional Securities (as defined below), the “ Securities ”), which Securities shall be deemed “Securities” for all purposes under the Indenture.

(3) The Initial Securities to be issued pursuant to this Fifth Supplemental Indenture shall be issued in the aggregate principal amount of $1,000,000,000 and shall mature on February 12, 2015 unless the Securities are redeemed prior to that date as described in Sections 4.1 or 4.2 of this Fifth Supplemental Indenture. The aggregate principal amount of Initial Securities Outstanding at any time may not exceed $1,000,000,000, except for Securities issued, authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of the Base Indenture and except for any Securities which, pursuant to Section 3.3 of the Base Indenture, are deemed never to have been authenticated and delivered; provided that the Company may without the consent of the Holders, issue additional Securities hereunder as part of the same series and on the same terms and conditions (except for the issue date, issue price and, in some cases, the first Interest Payment Date) (and having the same Guarantors) as the Initial Securities (“ Additional Securities ”).

(4) The Securities shall be issued only in fully registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000.

SECTION 1.2. Interest.

(1) Interest on a Security will accrue at the per annum rate of 2.100% (the “ Security Interest Rate ”), from and including the date specified on the face of such Security until the principal thereof is paid, deemed paid, or made available for payment and, in each case, will be paid on the basis of a 360-day year comprised of twelve 30-day months.

(2) The Company shall pay interest on the Securities semi-annually in arrears on February 12 and August 12 of each year (each, an “ Interest Payment Date ”), commencing August 12, 2012.

(3) Interest shall be paid on each Interest Payment Date to the registered Holders of the Securities after the close of business on the Regular Record Date.


(4) The Place of Payment for this Security shall be the corporate trust office of the Trustee at 625 Marquette Avenue, 11th Floor, Minneapolis, Minnesota 55479. Notwithstanding the foregoing, (i) payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository and (ii) the Company will make all payments in respect of a Definitive Security (including principal, premium and interest) by mailing a check to the registered address of each Holder thereof as such address appears in the Security Register; provided , however , that payments on a Definitive Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

(5) Neither the Company nor the Trustee shall impose any service charge for any transfer or exchange of a Security. However, the Company may ask Holders of the Securities to pay any taxes or other governmental charges in connection with a transfer or exchange of Securities.

(6) If any Interest Payment Date, Maturity Date or Redemption Date falls on a day that is not a Business Day in the City of New York, the Company will make the required payment of principal, premium, if any, and/or interest on the next succeeding Business Day as if it were made on the date payment was due, and no interest will accrue on the amount so payable for the period from and after that Interest Payment Date, the Maturity Date or earlier Redemption Date, as the case may be, to such next succeeding Business Day.

SECTION 1.3. Additional Interest.

The Company is party to a Registration Rights Agreement, dated as of February 9, 2012, among the Company, the Guarantors and the representatives of the Initial Purchasers named therein, pursuant to which it is obligated to pay additional interest on the Securities upon the occurrence of certain events specified in the Registration Rights Agreement.

Subject to the provisions of the Registration Rights Agreement, if a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Security from and including the date on which such Registration Default occurs to but excluding the date on which all such Registration Defaults have been cured or the Securities cease to be Transfer Restricted Securities (as defined in the Registration Rights Agreement), whichever is earlier, at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default, and such rate will increase by 0.25% per annum on the 91st day following the occurrence of such Registration Default (provided that the maximum additional interest rate during the initial 90-day period shall be 0.25% per annum and the maximum additional interest rate thereafter shall be 0.50% per annum, in each case regardless of the number of Registration Defaults that have occurred and are continuing). The Company will pay such additional interest on regular Interest Payment Dates.


SECTION 1.4. Relationship with Base Indenture.

The terms and provisions contained in the Base Indenture will constitute, and are hereby expressly made, a part of this Fifth Supplemental Indenture. However, to the extent any provision of the Base Indenture conflicts with the express provisions of this Fifth Supplemental Indenture, the provisions of this Fifth Supplemental Indenture will govern and be controlling; provided , however , that the forms and provisions of this Fifth Supplemental Indenture modify and amend the terms of the Base Indenture only with respect to the Securities.

ARTICLE II

Definitions and Other Provisions of General Application

SECTION 2.1. Definitions.

The terms defined in this Section 2.1 (except as herein otherwise expressly provided or unless the context of this Fifth Supplemental Indenture otherwise requires) for all purposes of this Fifth Supplemental Indenture and of any indenture supplemental hereto have the respective meanings specified in this Section 2.1. All other terms used in this Fifth Supplemental Indenture that are defined in the Base Indenture or the Trust Indenture Act, either directly or by reference therein (except as herein otherwise expressly provided or unless the context of this Fifth Supplemental Indenture otherwise requires), have the respective meanings assigned to such terms in the Base Indenture or the Trust Indenture Act, as the case may be, as in force at the date of this Fifth Supplemental Indenture as originally executed; provided that any term that is defined in both the Base Indenture and this Fifth Supplemental Indenture shall have the meaning assigned to such term in this Fifth Supplemental Indenture.

Additional Securities ” has the meaning specified in Section 1.1(3).

Appendix ” has the meaning specified in the recitals to this Fifth Supplemental Indenture.

Comparable Treasury Issue ” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of the Securities.

Comparable Treasury Price ” means with respect to any Redemption Date: (i) the average of five Reference Treasury Dealer Quotations for the Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than five Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations for the Redemption Date so obtained.


Definitive Security ” has the meaning specified in Section 1.1 of the Appendix.

Exchange Securities ” has the meaning specified in Section 1.1 of the Appendix.

Independent Investment Banker ” means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.

Initial Purchaser ” has the meaning specified in Section 1.1 of the Appendix.

Initial Securities ” means Securities in an aggregate principal amount of up to $1,000,000,000 initially issued under this Fifth Supplemental Indenture in accordance with Section 1.1(3).

Interest Payment Date ” has the meaning specified in Section 1.2(2).

Maturity Date ” means February 12, 2015.

Mergers ” means the merger of Aristotle Merger Sub, Inc., a Delaware corporation and Wholly Owned Subsidiary of the Company, with and into Express Scripts, and the merger of Plato Merger Sub, Inc., a Delaware corporation and Wholly Owned Subsidiary of the Company, with and into Medco pursuant to the Merger Agreement.

Private Exchange Securities ” has the meaning specified in Section 1.1 of the Appendix.

Reference Treasury Dealer ” means each of Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC (in each case, or their Affiliates) and three other primary United States government securities dealers selected by the Company, and each of their respective successors; provided that if any of the aforementioned Reference Treasury Dealers resigns, then the respective successor will be a primary United States government securities dealer in The City of New York selected by the Company.

Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at approximately 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.

Registration Rights Agreement ” has the meaning set forth in Section 1.1 of the Appendix.


Regular Record Date ” for interest payable in respect of any Security on any Interest Payment Date means the day that is 15 days prior to the relevant Interest Payment Date (whether or not a Business Day).

Security Interest Rate ” has the meaning specified in Section 1.2(1).

Securities ” has the meaning specified in Section 1.1(2).

Special Mandatory Redemption Date ” means the earlier to occur of (i) the 20th day (or if such day is not a Business Day, the first Business Day thereafter) following the Special Mandatory Redemption Triggering Date, if the Mergers have not been completed on or prior to the Special Mandatory Redemption Triggering Date, or (ii) the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the termination of the Merger Agreement for any reason.

Special Mandatory Redemption Notice ” has the meaning set forth in Section 4.3 hereto.

Special Mandatory Redemption Price ” has the meaning set forth in Section 4.2 hereto.

Special Mandatory Redemption Triggering Date ” means April 20, 2012; provided that such date may be extended by the Company on one or more occasions to a date not later than July 20, 2012, in the event the conditions set forth in Sections 6.1(c), 6.1(e) or 6.2(d) of the Merger Agreement have not been satisfied or waived by the fifth Business Day (as defined in the Merger Agreement) prior to April 20, 2012; provided , further , that such extended date may be further extended by the Company on one or more occasions to a date not later than October 22, 2012, in the event that the conditions set forth in Sections 6.1(c), 6.1(e) or 6.2(d) of the Merger Agreement have not been satisfied or waived by the fifth Business Day (as defined in the Merger Agreement) prior to the initially extended date; provided , however , that, in any case, (x) the Special Mandatory Redemption Triggering Date shall only be extended if and when the Outside Date (as defined in the Merger Agreement) is extended pursuant to Section 7.1(b)(ii) of the Merger Agreement, and the Special Mandatory Redemption Triggering Date, as so extended, shall be the same date as the Outside Date, as so extended, and (y) if the Special Mandatory Redemption Triggering Date is extended in accordance with the foregoing, the term “Special Mandatory Redemption Triggering Date” shall mean such date as so extended.

Treasury Rate ” means, with respect to any Redemption Date, the rate per year equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.


ARTICLE III

Security Forms

SECTION 3.1. Form Generally.

(1) Provisions relating to the Initial Securities, the Exchange Securities and the Private Exchange Securities are set forth in the Appendix, which is hereby incorporated in, and expressly made part of, this Indenture. The Initial Securities and the Trustee’s certificate of authentication with respect thereto shall be substantially in the form of Exhibit 1 to the Appendix. The Exchange Securities and the Private Exchange Securities and the Trustee’s certificate of authentication with respect thereto shall be substantially in the form of Exhibit 2 to the Appendix. The Securities may have notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent herewith, be determined by the officers executing such Securities (execution thereof to be conclusive evidence of such approval). Each Security shall be in fully registered form and shall be dated the date of its authentication. The terms of the Securities set forth in the Appendix are part of the terms of this Fifth Supplemental Indenture. The Guarantees shall be in substantially the form set forth in Exhibit 3 to the Appendix.

(2) The Securities shall be printed, lithographed, typewritten or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any automated quotation system or securities exchange (including on steel engraved borders if so required by any automated quotation system or securities exchange upon which the Securities may be quoted or listed) on which the Securities may be quoted or listed, as the case may be, all as determined by the officers executing such Securities, as evidenced by their execution thereof.

ARTICLE IV

Redemption of Securities

SECTION 4.1. Optional Redemption.

The Company may, at its option, redeem the Securities, in whole or from time to time in part, prior to the Maturity Date at a Redemption Price equal to the greater of: (i) 100% of the aggregate principal amount of Securities to be redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date; or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities to be redeemed (exclusive of unpaid interest accrued thereon to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year comprised of twelve 30-day months) at the Treasury Rate plus 30 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.


SECTION 4.2. Special Mandatory Redemption.

If for any reason (i) the Mergers are not consummated on or prior to the Special Mandatory Redemption Triggering Date or (ii) the Merger Agreement is terminated at any time prior thereto, then the Company shall redeem all the Securities on the Special Mandatory Redemption Date at a price equal to 101% of the aggregate accreted principal amount of the Securities, plus accrued and unpaid interest from the date of original issuance to, but excluding, the Special Mandatory Redemption Date (the “ Special Mandatory Redemption Price ”) (subject to the right of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).

SECTION 4.3. Special Mandatory Redemption Procedures.

(1) Notice of redemption pursuant to Section 4.2 (a “ Special Mandatory Redemption Notice ”) shall be mailed, with a written copy to the Trustee, by first class mail, postage prepaid, within 10 Business Days after the occurrence of the event triggering redemption to each Holder of Securities at such Holder’s address as shown in the Security Register. Failure to give notice by mailing in the manner herein provided to such Holder, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities.

All Special Mandatory Redemption Notices shall state:

(i) the Special Mandatory Redemption Date;

(ii) the Special Mandatory Redemption Price;

(iii) that on the Special Mandatory Redemption Date the Special Mandatory Redemption Price will become due and payable with respect to each Security;

(iv) the place or places where such Securities are to be surrendered for payment of the Special Mandatory Redemption Price;

(v) the CUSIP, ISIN or Common Code numbers of such Securities, if any (or any other numbers used by the Depositary to identify such Securities); and

(vi) if funds sufficient to pay the Special Mandatory Redemption Price of all Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Paying Agent on or before such Special Mandatory Redemption Date, that such Securities shall cease to bear interest on and after such Special Mandatory Redemption Date.

(2) Each Special Mandatory Redemption Notice having been given as aforesaid, the Securities shall, on the Special Mandatory Redemption Date, become due and payable at the Special Mandatory Redemption Price therein specified. If funds sufficient to pay the Special Mandatory Redemption Price of all Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Paying Agent on or before such Special Mandatory Redemption Date, the Securities shall cease


to bear interest on and after such Special Mandatory Redemption Date (unless the Company shall default on the payment of the Special Mandatory Redemption Price). Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Special Mandatory Redemption Price; provided, however, that installments of interest whose Interest Payment Date is on or prior to the Special Mandatory Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date according to their terms and the provisions of Section 3.7 of the Indenture.

(3) If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof shall, until paid, bear interest from the Special Mandatory Redemption Date at the rate borne by the Security.

ARTICLE V

Remedies

SECTION 5.1. Events of Default.

With respect to the Securities, Section 5.1 of the Base Indenture is hereby amended to add the following as Section 5.1(9):

(i) the Company fails to timely deliver a Special Mandatory Redemption Notice when required.

ARTICLE VI

Reports by Company

SECTION 6.1. Reports by Express Scripts or the Company.

With respect to the Securities, Section 7.4 of the Base Indenture is hereby amended to add the following paragraph to the end of such Section:

In addition, prior to the consummation of the Mergers, Express Scripts and, following the consummation of the Mergers, the Company, shall furnish, at the Company’s expense, to the Holders and prospective Holders, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision) under the Securities Act so long as any Securities are not freely transferable under the Securities Act.


ARTICLE VII

Supplemental Indentures

SECTION 7.1. Supplemental Indentures Without Consent of Holders.

Section 9.1 of the Base Indenture shall not be applicable to the Securities.

Without seeking the consent of any Holders, the Company, together with the Trustee, at any time and from time to time, may modify and amend the Base Indenture, this Fifth Supplemental Indenture and the terms of the Securities to:

(1) allow the Company’s or any Guarantor’s successor (or successive successors) to assume the Company’s or such Guarantor’s obligations under the Base Indenture, this Fifth Supplemental Indenture and the Securities pursuant to the provisions under Article VIII or Section 13.15 of the Base Indenture;

(2) add to the covenants of the Company for the benefit of the Holders of the Securities or to surrender any right or power herein conferred upon the Company under this Fifth Supplemental Indenture, the Base Indenture or the Securities;

(3) add any additional Events of Default;

(4) secure the Securities;

(5) provide for a successor Trustee with respect to the Securities and add to or change any of the provisions of the Base Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11 of the Base Indenture;

(6) add or release a Guarantor as required or permitted by the Indenture;

(7) cure any ambiguity, defect or inconsistency;

(8) amend the provisions of the Base Indenture or this Fifth Supplemental Indenture relating to the transfer or legending of the Securities; provided that (i) compliance with the Base Indenture or this Fifth Supplemental Indenture as so amended would not result in Securities being transferred in violation of the Securities Act or any other applicable securities law and (ii) such amendment does not adversely affect the interests of the Holders of the Securities or owners of beneficial interests in Securities; or

(9) make any other amendment or supplement to the Base Indenture, this Fifth Supplemental Indenture or the Securities, as long as that amendment or supplement does not adversely affect the interests of the Holders of any Securities in any material respect (to be evidenced by an Opinion of Counsel).

No amendment to cure any ambiguity, defect or inconsistency in the Base Indenture, this Fifth Supplemental Indenture or the Securities made solely to conform to


the provisions of the Base Indenture, this Fifth Supplemental Indenture or the Securities to any description of the Securities in the offering circular therefor, to the extent that such provision in the offering circular was intended to be a verbatim recitation of a provision of the Base Indenture, this Fifth Supplemental Indenture or the Securities, shall be deemed to adversely affect the interests of the Holders of any Securities.

SECTION 7.2. Supplemental Indentures With Consent of Holders.

Section 9.2 of the Base Indenture shall not be applicable to the Securities.

The Company, together with the Trustee, may modify and amend this Fifth Supplemental Indenture, the Base Indenture and the terms of the Securities with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities; provided that no modification or amendment may, without the consent of each affected Holder of each Security:

(1) change the Stated Maturity of the principal of, or any installment of or interest on, the Securities;

(2) reduce the principal amount of, or any premium, if any, or rate of interest on, the Securities;

(3) reduce any amount payable upon the redemption of the Securities or, except as expressly provided elsewhere herein, change the time at which the Securities may be redeemed pursuant to Section 4.1 hereof;

(4) change any Place of Payment where, or the currency in which, any principal of, or premium, if any, or interest on, the Securities are payable;

(5) impair the right of any Holder of a Security to receive payment of principal of and interest on such Holder’s Security on or after the Stated Maturity or Redemption Date or to institute suit for the enforcement of any payment on, or with respect to, any Security on or after the Stated Maturity or Redemption Date;

(6) reduce the percentage in principal amount of the Outstanding Securities, the consent of whose Holders is required for modification or amendment of the Base Indenture or this Fifth Supplemental Indenture, for waiver of compliance with certain provisions of the Base Indenture or this Fifth Supplemental Indenture or waiver of certain Defaults;

(7) release any Guarantor from any of its obligations under its Guarantee or the Base Indenture or this Fifth Supplemental Indenture other than in accordance with the terms thereof or hereof; or

(8) modify any of the above provisions.

Any modification or amendment to, or waiver of, the provisions of this Fifth Supplemental Indenture and the terms of the Securities that relate to the Special


Mandatory Redemption set forth in Sections 4.2 or 4.3 shall require the written consent of the Holders of at least 66 2/3% in aggregate principal amount of the Outstanding Securities. In addition, any modification or amendment to, or waiver of, the provisions in the Indenture and the terms of the Securities that relate to the items set forth in Section 10.10 of the Base Indenture shall require the written consent of at least a majority in principal amount of the Outstanding Securities.

In addition, the Holders of at least a majority in aggregate principal amount of the Outstanding Securities may, on behalf of the Holders of all the Securities, waive any past default under the Base Indenture or this Fifth Supplemental Indenture and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any Securities or in respect of a covenant or provision that under the Base Indenture or this Fifth Supplemental Indenture cannot be modified or amended without the consent of each Holder. In addition, the Holders of at least a majority in aggregate principal amount of the Outstanding Securities may, on behalf of the Holders of all Securities, waive compliance with the Company’s covenants described under Sections 10.8 and 10.9 of the Indenture.

ARTICLE VIII

Miscellaneous.

SECTION 8.1. Governing Law; Waiver of Jury Trial

THIS FIFTH SUPPLEMENTAL INDENTURE, THE GUARANTEES AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIFTH SUPPLEMENTAL INDENTURE, THE GUARANTEES, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

SECTION 8.2. Supplemental Indenture May be Executed in Counterparts.

This Fifth Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Fifth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Fifth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Fifth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.


SECTION 8.3. Separability Clause.

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.


IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed all as of the day and year first above written.

[Signature Pages To Follow]


 

ARISTOTLE HOLDING, INC.
By:  

/s/ George Paz

          Name:   George Paz
          Title:   Chairman, Chief Executive Officer and President
EXPRESS SCRIPTS, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President
AIRPORT HOLDINGS, LLC
ESI REALTY, LLC
By: Express Scripts, Inc., as sole Member
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President

[Fifth Supplemental Indenture]


 

BYFIELD DRUG, INC.

CARE CONTINUUM, INC.

CFI OF NEW JERSEY, INC.

CHESAPEAKE INFUSION, INC.

CONNECTYOURCARE COMPANY LLC

CONNECTYOURCARE, LLC

CURASCRIPT PBM SERVICES INC.

DIVERSIFIED PHARMACEUTICAL SERVICES, INC.

ESI ACQUISITION, INC.

ESI CLAIMS, INC.

ESI ENTERPRISES, LLC

ESI MAIL ORDER PROCESSING, INC.

EXPRESS SCRIPTS CANADA HOLDING CO.

EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC

EXPRESS SCRIPTS SERVICES COMPANY

FRECO, INC.

FREEDOM SERVICE COMPANY, LLC

HEALTHBRIDGE, INC.

HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC.

iBIOLOGIC, INC.

IVTX, INC.

LYNNFIELD COMPOUNDING CENTER, INC.

LYNNFIELD DRUG, INC.

MATRIX GPO LLC

NATIONAL PRESCRIPTION ADMINISTRATORS, INC.

PRIORITY HEALTHCARE CORPORATION

PRIORITY HEALTHCARE CORPORATION WEST

PRIORITY HEALTHCARE DISTRIBUTION, INC.

PRIORITY HEALTHCARE PHARMACY, INC.

PRIORITYHEALTHCARE.COM, INC.

SINUSPHARMACY, INC.

SPECIALTY INFUSION PHARMACY, INC.

SPECTRACARE, INC.

SPECTRACARE HEALTH CARE VENTURES, INC.

SPECTRACARE INFUSION PHARMACY, INC.

VALUE HEALTH, INC.

YOURPHARMACY.COM, INC.

 

By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President

[Fifth Supplemental Indenture]


 

CURASCRIPT, INC.

ESI MAIL PHARMACY SERVICE, INC.

EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.

EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.

MOORESVILLE ON-SITE PHARMACY, LLC

By:  

/s/ Patrick McNamee

  Name:   Patrick McNamee
  Title:   President

[Fifth Supplemental Indenture]


 

ESI-GP HOLDINGS, INC.
ESI RESOURCES, INC.
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President
ESI PARTNERSHIP
By: Express Scripts, Inc., as Partner
By:  

/s/ Martin P. Akins

  Name:   Martin P. Akins
  Title:   Vice President and Deputy General Counsel
By: ESI-GP Holdings, Inc., as Partner
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President

[Fifth Supplemental Indenture]


 

SPECTRACARE OF INDIANA
By: Spectracare, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
By: Care Continuum, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
EXPRESS SCRIPTS MSA, LLC
EXPRESS SCRIPTS WC, INC.
By:  

/s/ Edward Ignaczak

  Name:   Edward Ignaczak
  Title:   President
EXPRESS SCRIPTS SENIOR CARE, INC.

EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC.

By:  

/s/ George Paz

  Name:   George Paz
  Title:   President

EXPRESS SCRIPTS CANADA HOLDING, LLC

By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President

[Fifth Supplemental Indenture]


 

Wells Fargo Bank, National Association,
As Trustee
By:  

/s/ Richard Prokosch

  Name:   Richard Prokosch
  Title:   Vice President

[Fifth Supplemental Indenture]


RULE 144A/REGULATION S APPENDIX

PROVISIONS RELATING TO INITIAL SECURITIES,

PRIVATE EXCHANGE SECURITIES

AND EXCHANGE SECURITIES

 

  1. Definitions

1.1 Definitions

For the purposes of this Appendix the following terms shall have the meanings indicated below:

Applicable Procedures ” means, with respect to any transfer or transaction prior to the expiration of the Restricted Period and involving a Regulation S Global Security or beneficial interest therein, the rules and procedures of the Depository for such a transfer or transaction, to the extent applicable and as in effect from time to time.

Definitive Security ” means a certificated Initial Security or Exchange Security or Private Exchange Security bearing, if required, the appropriate restricted securities legend set forth in Section 2.3(e).

Depository ” means The Depository Trust Company, its nominees and their respective successors.

Exchange Securities ” means any securities issued pursuant to the Indenture in connection with a Registered Exchange Offer pursuant to a Registration Rights Agreement.

Initial Purchaser ” means with respect to each issuance of Initial Securities, the Persons purchasing such Initial Securities under the related Purchase Agreement.

Initial Securities ” means any securities other than Exchange Securities and Private Exchange Securities issued pursuant to the Indenture.

Issue Date ” means the date on which Initial Securities are issued pursuant to a supplemental indenture to the Base Indenture or an Officers’ Certificate pursuant to Section 3.1 of the Base Indenture.

Private Exchange ” means the offer by the Company, pursuant to a Registration Rights Agreement, to the Initial Purchaser to issue and deliver to the Initial Purchaser, in exchange for the Initial Securities held by the Initial Purchaser as part of its initial distribution, a like aggregate principal amount of Private Exchange Securities.

Private Exchange Securities ” means any securities issued in connection with a Private Exchange.


Purchase Agreement ” means with respect to each issuance of Initial Securities, the purchase agreement or underwriting agreement among the Company, the Guarantors and the Persons purchasing such Securities.

QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

Registered Exchange Offer ” means an offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Securities, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of Exchange Securities registered under the Securities Act.

Registration Rights Agreement ” means, with respect to each issuance of Securities issued in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, among the Company, the Guarantors and the Persons purchasing such Securities under the related Purchase Agreement.

Restricted Period ” means, with respect to any Securities, the period of 40 consecutive days beginning on and including the later of (i) the day on which such Securities are first offered to Persons other than distributors (as defined in Regulation S under the Securities Act) in reliance on Regulation S and (ii) the issue date with respect to such Securities.

Rule 144A Securities ” means all Securities offered and sold to QIBs in reliance on Rule 144A.

Securities Act ” means the Securities Act of 1933, as amended.

Securities Custodian ” means the custodian with respect to a Global Security (as appointed by the Depository), or any successor Person thereto and shall initially be the Trustee.

Shelf Registration Statement ” means the shelf registration statement filed by the Company in connection with the offer and sale of Initial Securities or Private Exchange Securities pursuant to a Registration Rights Agreement.

Transfer Restricted Securities ” means Securities that bear or are required to bear the legend relating to restrictions on transfer relating to the Securities Act set forth in Section 2.3(e) hereto.

 

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1.2 Other Definitions

 

Term

   Defined in  Section :  

“Agent Members”

     2.1(b)   

“Clearstream, Luxembourg”

     2.1(a)   

“Euroclear”

     2.1(a)   

“Global Securities”

     2.1(a)   

“Regulation S”

     2.1(a)   

“Regulation S Global Security”

     2.1(a)   

“Regulation S Permanent Global Security”

     2.1(a)   

“Regulation S Temporary Global Security”

     2.1(a)   

“Restricted Securities Legend”

     2.3(e)   

“Rule 144A”

     2.1(a)   

“Rule 144A Global Security”

     2.1(a)   

 

  2. The Securities.

2.1 (a)  Form and Dating. The Initial Securities were offered and sold by the Company pursuant to a Purchase Agreement. The Initial Securities will be resold initially only to (i) QIBs in reliance on Rule 144A under the Securities Act (“ Rule 144A ”) and (ii) in offshore transactions to Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S under the Securities Act (“ Regulation S ”). Initial Securities may thereafter be transferred to, among others, QIBs and purchasers in reliance on Regulation S, subject to the restrictions on transfer set forth herein. Initial Securities initially resold pursuant to Rule 144A shall be issued initially in the form of one or more securities in registered, global form (collectively, the “ Rule 144A Global Security ”); and Initial Securities initially resold pursuant to Regulation S shall be issued initially in the form of one or more temporary securities in registered, global form (collectively, the “ Regulation S Temporary Global Security ”), in each case without interest coupons and with the global securities legend and the applicable restricted securities legend set forth Section 2.3(e) hereto, which shall be deposited on behalf of the purchasers of the Initial Securities represented thereby with the Securities Custodian and registered in the name of the Depository or a nominee of the Depository, duly executed by the Company and authenticated by the Trustee as provided in the Base Indenture. Until the expiration of the Restricted Period, beneficial ownership interests in the Regulation S Temporary Global Securities may be held only through Euroclear Bank S.A./N.V., as operator of the Euroclear System (“ Euroclear ”), and Clearstream Banking, société anonyme (“ Clearstream,

 

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Luxembourg ”), as indirect participants in DTC, unless transferred to a Person that takes delivery through a Rule 144A Global Security in accordance with the certification requirements described in the second succeeding paragraph below. Except as set forth in this Section 2.1(a), beneficial ownership interests in a Regulation S Temporary Global Security will not be exchangeable for interests in the Rule 144A Global Security or any other Security prior to the expiration of the Restricted Period and then, after the expiration of the Restricted Period, may be exchanged for one or more permanent securities in registered, global form without interest coupons (collectively, the “ Regulation S Permanent Global Security ” and, together with the Regulation S Temporary Global Security, the “ Regulation S Global Security ”) or a Definitive Security upon (1) delivery to DTC of certification of compliance with the transfer restrictions applicable to the Securities and pursuant to Regulation S as provided in the Indenture, (2) a certification in form satisfactory to the Trustee that beneficial ownership interests in such Regulation S Temporary Global Security are owned either by non-U.S. persons or U.S. persons who purchased such interests in a transaction that did not require registration under the Securities Act and (3) in the case of an exchange for Definitive Securities, in compliance with the requirements described in Section 2.4(a) of this Appendix.

Definitive Securities may not be exchanged for beneficial interests in any Global Security unless the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that such transfer will comply with the appropriate transfer restrictions applicable to such Securities.

Prior to the expiration of the Restricted Period, beneficial interests in Regulation S Global Securities may be exchanged for interests in Rule 144A Global Securities only if (1) such exchange occurs in connection with a transfer of Securities pursuant to Rule 144A and (2) the transferor of the beneficial interest in the Regulation S Global Security first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that the beneficial interest in the Regulation S Global Security is being transferred to a Person (a) whom the transferor reasonably believes to be a QIB, (b) is purchasing for its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A, and (c) in accordance with all applicable securities laws of the states of the United States and other jurisdictions.

Beneficial interests in a Rule 144A Global Security may be transferred to a Person who takes delivery in the form of an interest in a Regulation S Global Security, whether before or after the expiration of the Restricted Period, only if the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if available) under the Securities Act.

The Rule 144A Global Security, the Regulation S Global Security and any Global Securities in fully registered form without the Restricted Securities Legend are collectively referred to herein as “ Global Securities .” The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided.

(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Security deposited with or on behalf of the Depository.

 

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The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver initially one or more Global Securities that (a) shall be registered in the name of the Depository for such Global Security or Global Securities or the nominee of such Depository and (b) shall be delivered by the Trustee to such Depository or pursuant to such Depository’s instructions or held by the Trustee as custodian for the Depository.

Members of, or participants in, the Depository (“ Agent Members ”) shall have no rights under the Indenture with respect to any Global Security held on their behalf by the Depository or by the Trustee as the custodian of the Depository or under such Global Security, and the Company, the Trustee and any agent of the Company or the Trustee shall be entitled to treat the Depository as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices of such Depository governing the exercise of the rights of a holder of a beneficial interest in any Global Security.

(c) Definitive Securities. Except as provided in this Section 2.1 or Section 2.3 or 2.4, owners of beneficial interests in Global Securities shall not be entitled to receive physical delivery of Definitive Securities.

2.2 Authentication.  The Trustee shall authenticate and deliver: (1) on the Issue Date, Initial Securities in an aggregate principal amount specified in the written order of the Company pursuant to Section 3.3 of the Indenture, (2) Exchange Securities or Private Exchange Securities for issue only in a Registered Exchange Offer or a Private Exchange, respectively, pursuant to a Registration Rights Agreement, for a like principal amount of Initial Securities, and (3) a Global Security without the Restricted Securities Legend pursuant to Section 2.3(e) of this Appendix, in each case upon a Company Order. Such Company Order shall specify the amount of the Securities to be authenticated and the date on which the original issue of Securities is to be authenticated.

2.3 Transfer and Exchange.

(a) Transfer and Exchange of Definitive Securities . When Definitive Securities are presented to the Security Registrar with a request:

 

  (x) to register the transfer of such Definitive Securities; or

 

  (y) to exchange such Definitive Securities for an equal principal amount of Definitive Securities of other authorized denominations,

the Security Registrar shall register the transfer or make the exchange as requested pursuant to the terms of the Indenture and if its reasonable requirements for such transaction are met; provided , however , that the Definitive Securities surrendered for transfer or exchange:

(i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing; and

 

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(ii) if such Definitive Securities are required to bear a restricted securities legend, they are being transferred or exchanged pursuant to an effective registration statement under the Securities Act, pursuant to Section 2.3(b) or pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:

(A) if such Definitive Securities are being delivered to the Security Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or

(B) if such Definitive Securities are being transferred to the Company, a certification to that effect; or

(C) if such Definitive Securities are being transferred (x) pursuant to an exemption from registration in accordance with Rule 144A, Regulation S or Rule 144 under the Securities Act; or (y) in reliance upon another exemption from the requirements of the Securities Act: (i) a certification to that effect (in the form set forth on the reverse of the Security) and (ii) if the Company so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section 2.3(e)(i).

(b) Restrictions on Transfer of a Definitive Security for a Beneficial Interest in a Global Security. A Definitive Security may not be exchanged for a beneficial interest in a Rule 144A Global Security or a Regulation S Global Security except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:

(i) certification, in the form set forth on the reverse of the Security, that such Definitive Security is either (A) being transferred to a QIB in accordance with Rule 144A or (B) being transferred after expiration of the Restricted Period by a Person who initially purchased such Security in reliance on Regulation S to a buyer who elects to hold its interest in such Security in the form of a beneficial interest in the Regulation S Global Security; and

(ii) written instructions directing the Trustee to make, or to direct the Securities Custodian to make, an adjustment on its books and records with respect to such Rule 144A Global Security (in the case of a transfer pursuant to clause (b)(i)(A)) or Regulation S Global Security (in the case of a transfer pursuant to clause (b)(i)(B)) to reflect an increase in the aggregate principal amount of the Securities represented by the Rule 144A Global Security or Regulation S Global Security, as applicable, such instructions to contain information regarding the Depository account to be credited with such increase,

then the Trustee shall cancel such Definitive Security and cause, or direct the Securities Custodian to cause, in accordance with the standing instructions and procedures existing between the Depository and the Securities Custodian, the aggregate principal amount of Securities

 

6


represented by the Rule 144A Global Security or Regulation S Global Security, as applicable, to be increased by the aggregate principal amount of the Definitive Security to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Global Security or Regulation S Global Security, as applicable, equal to the principal amount of the Definitive Security so canceled. If no Rule 144A Global Securities or Regulation S Global Securities, as applicable, are then outstanding, the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officers’ Certificate of the Company, a new Rule 144A Global Security or Regulation S Global Security, as applicable, in the appropriate principal amount.

(c) Transfer and Exchange of Global Securities.

(i) The transfer and exchange of Global Securities or beneficial interests therein shall be effected through the Depository, in accordance with the Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor. A transferor of a beneficial interest in a Global Security shall deliver to the Security Registrar a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository to be credited with a beneficial interest in the Global Security. The Security Registrar shall, in accordance with such instructions instruct the Depository to credit to the account of the Person specified in such instructions a beneficial interest in the Global Security and to debit the account of the Person making the transfer in an amount equal to the beneficial interest in the Global Security being transferred.

(ii) If the proposed transfer is a transfer of a beneficial interest in one Global Security to a beneficial interest in another Global Security, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Security to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Security Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Security from which such interest is being transferred.

(iii) Notwithstanding any other provisions of this Appendix (other than the provisions set forth in Section 2.4), a Global Security may not be transferred as a whole except by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.

(iv) In the event that a Global Security is exchanged for Definitive Securities pursuant to Section 2.4 of this Appendix, prior to the consummation of a Registered Exchange Offer or the effectiveness of a Shelf Registration Statement with respect to such Securities, such Securities may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 2.3 (including the certification requirements set forth on the reverse of the Initial Securities intended to ensure that such transfers comply with Rule 144A, Regulation S or another applicable exemption under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company.

 

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(d) Restrictions on Transfer of Regulation S Global Securities. During the Restricted Period, beneficial ownership interests in Regulation S Global Securities may only be sold, pledged or transferred in accordance with the Applicable Procedures and only (i) to the Company, (ii) in an offshore transaction in accordance with Regulation S or (iii) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any State of the United States.

(e) Legend.

(i) Except as permitted by the following paragraphs (ii), (iii) and (iv), each Security certificate evidencing the Global Securities (and all Securities issued in exchange therefor or in substitution thereof), in the case of Securities offered other than in reliance on Regulation S, shall bear a legend in substantially the following form (together with the legend in the second paragraph of this Section 2.3(e)(i), the “ Restricted Securities Legend ”):

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.

THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER

 

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WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.

Each certificate evidencing a Security offered in reliance on Regulation S shall bear a legend in substantially the following form:

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.

Each Definitive Security shall also bear the following additional legend:

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

(ii) Upon any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Global Security) pursuant to Rule 144 under the Securities Act, the Security Registrar shall permit the transferee thereof to exchange such Transfer Restricted Security for a Definitive Security that does not bear the legend set forth above and rescind any restriction on the transfer of such Transfer Restricted Security, if the transferor thereof certifies in writing to the Security Registrar that such sale or transfer was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Security); and to the extent permitted by law at any time after one year has elapsed following the Issue Date, if the Securities are freely tradeable without restriction pursuant to Rule 144 under the Securities Act (or successor rule), the Security Registrar shall permit the removal of the Restricted Securities Legend and rescind any restriction on the transfer of such Transfer Restricted Security if the Company delivers to the Trustee an opinion reasonably satisfactory to the Trustee that the removal of the Restricted Securities Legend is in compliance with the Securities Act.

(iii) After a transfer of any Initial Securities or Private Exchange Securities pursuant to and during the period of the effectiveness of a Shelf Registration Statement with respect to such Initial Securities or Private Exchange Securities, as the case may be, all requirements pertaining to legends on such Initial Security or such Private Exchange

 

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Security will cease to apply and a certificated Initial Security or Private Exchange Security or an Initial Security or Private Exchange Security in global form, in each case without restrictive transfer legends, will be available to the transferee of the Holder of such Initial Securities or Private Exchange Securities upon exchange of such transferring Holder’s certificated Initial Security or Private Exchange Security or directions to transfer such Holder’s interest in the Global Security, as applicable.

(iv) Upon the consummation of a Registered Exchange Offer with respect to the Initial Securities, all requirements pertaining to such Initial Securities that Initial Securities issued to certain Holders be issued in global form will still apply with respect to Holders of such Initial Securities that do not exchange their Initial Securities, and Exchange Securities in certificated or global form, in each case without the restricted securities legend set forth in Exhibit 1 hereto will be available to Holders that exchange such Initial Securities in such Registered Exchange Offer.

(v) Upon the consummation of a Private Exchange with respect to the Initial Securities, all requirements pertaining to such Initial Securities that Initial Securities issued to certain Holders be issued in global form will still apply with respect to Holders of such Initial Securities that do not exchange their Initial Securities, and Private Exchange Securities in global form with the global securities legend and the applicable restricted securities legend set forth in Exhibit 1 hereto will be available to Holders that exchange such Initial Securities in such Private Exchange.

(f) Cancellation or Adjustment of Global Security. At such time as all beneficial interests in a Global Security have either been exchanged for Definitive Securities, redeemed, purchased or canceled, such Global Security shall be returned to the Depository for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for Definitive Securities, redeemed, purchased or canceled, the principal amount of Securities represented by such Global Security shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Securities Custodian for such Global Security) with respect to such Global Security, by the Trustee or the Securities Custodian, to reflect such reduction.

(g) No Obligation of the Trustee.

(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depository or other Person with respect to the accuracy of the records of the Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depository) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities shall be given or made only to or upon the order of the registered Holders (which shall be the Depository or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depository subject to the applicable rules and procedures of the Depository. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its members, participants and any beneficial owners.

 

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(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depository participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

2.4 Definitive Securities.

(a) A Global Security deposited with the Depository or with the Trustee as Securities Custodian for the Depository pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the form of Definitive Securities in an aggregate principal amount equal to the principal amount of such Global Security, in exchange for such Global Security, only if such transfer complies with Section 2.3 hereof and (i) the Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a “clearing agency” registered under the Exchange Act, in either case, and a successor depository is not appointed by the Company within 90 days of such notice, (ii) a Default with respect to the Securities has occurred and is continuing and DTC or the Company specifically requests such exchange, (iii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of Definitive Securities under the Indenture or (iv) upon prior written notice given to the Trustee by or on behalf of the Depository in accordance with the Indenture.

(b) Any Global Security that is transferable to the beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by the Depository to the Trustee located at its principal corporate trust office in the Borough of Manhattan, The City of New York, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Security, an equal aggregate principal amount of Definitive Securities of authorized denominations. Any portion of a Global Security transferred pursuant to this Section 2.4 shall be executed, authenticated and delivered only in minimum denominations of $2,000 principal amount and any integral multiple of $1,000 in excess thereof and registered in such names as the Depository shall direct. Any Definitive Security delivered in exchange for an interest in a Transfer Restricted Security shall, except as otherwise provided by Section 2.3(e) hereof, bear the applicable restricted securities legend and definitive securities legend set forth in Exhibit 1 hereto unless that legend is not required by applicable law.

(c) Subject to the provisions of Section 2.4(b) hereof, the registered Holder of a Global Security shall be entitled to grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Securities.

 

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(d) In the event of the occurrence of one of the events specified in Section 2.4(a) hereof, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Securities in definitive, fully registered form without interest coupons.

 

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APPENDIX

EXHIBIT 1

[FORM OF FACE OF INITIAL SECURITY]

[Global Securities Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Securities Legend for Securities offered otherwise than in Reliance on Regulation S]

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.

THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR

 

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OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.

[Restricted Securities Legend for Securities Offered in Reliance on Regulation S.]

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.

[Definitive Securities Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

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ARISTOTLE HOLDING, INC.

2.100% SENIOR NOTE DUE 2015

 

No.                         Principal Amount (US)$        
CUSIP NO.                        
ISIN NO.                        

Aristotle Holding, Inc., a corporation organized and existing under the laws of the State of Delaware (herein called the “ Company ”, which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of                      United States Dollars (U.S.$         ) on February 12, 2015 and to pay interest thereon, from February 9, 2012, or from the most recent Interest Payment Date to which interest has been paid or duly provided for to but excluding the next Interest Payment Date, which shall be February 12 and August 12 of each year, commencing August 12, 2012, at the per annum rate of 2.100%, or as such rate may be adjusted pursuant to the terms hereof (the “ Security Interest Rate ”), until the principal hereof is paid or made available for payment.

The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest, which shall be the day that is 15 days prior to the relevant Interest Payment Date (whether or not a Business Day). Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Securities not less than 10 days prior to the Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any automated quotation system or securities exchange on which the Securities may be quoted or listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will pay interest on overdue principal at the rate borne by this Security, and it will pay interest on overdue installments of interest at the same rate to the extent lawful.

Subject to the provisions of the Registration Rights Agreement, if a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Security from and including the date on which such Registration Default occurs to but excluding the date on which all such Registration Defaults have been cured or the Securities cease to be Transfer Restricted Securities (as defined in the Registration Rights Agreement), whichever is earlier, at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default, and such rate will increase by 0.25% per annum on the 91st day following the occurrence of such Registration Default (provided that the maximum additional interest rate during the initial 90-day period shall be 0.25% per annum and the maximum additional interest rate thereafter shall be 0.50% per annum, in each case regardless of the number of Registration Defaults that have occurred and are continuing). The Company will pay such additional interest on regular Interest Payment Dates.

 

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The Place of Payment for this Security will be the corporate trust office of the Trustee at 625 Marquette Avenue, 11th Floor, Minneapolis, Minnesota 55479, or as otherwise provided in the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a Definitive Security (including principal, premium and interest) by mailing a check to the registered address of each Holder thereof as such address appears on the Security Register; provided , however , that payments on a Definitive Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

ARISTOTLE HOLDING, INC.
By:  

 

Name:  
Title:  

 

Attest:
By:  

 

Name:  
Title:  

 

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CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated referred to in the within-mentioned Indenture.

Dated:

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:  

 

  Authorized Signatory

 

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[FORM OF REVERSE OF SECURITY]

(1) Indenture . This Security is one of a duly authorized issue of securities of the Company designated as its “ 2.100% Senior Notes due 2015 ” (herein called the “ Securities ”), issued under a Fifth Supplemental Indenture, dated as of February 9, 2012, to an indenture, dated as of November 21, 2011 (as it may be amended or supplemented from time to time in accordance with the terms thereof and herein with the Fifth Supplemental Indenture, collectively, the “ Indenture ”), between the Company, the Guarantors and Wells Fargo Bank, National Association, as Trustee (herein called the “ Trustee ,” which term includes any successor trustee under the Indenture), to which reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The aggregate principal amount of Initial Securities Outstanding at any time may not exceed $1,000,000,000 in aggregate principal amount, except for Securities issued, authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of the Base Indenture and except for any Securities which, pursuant to Section 3.3 of the Base Indenture, are deemed never to have been authenticated and delivered. The Fifth Supplemental Indenture pursuant to which this Security is issued provides that Additional Securities may be issued thereunder, if certain conditions are met. The Initial Securities issued pursuant to the Fifth Supplemental Indenture and all Exchange Securities or Private Exchange Securities issued in exchange therefor will be treated as a single class for all purposes under the Indenture.

The Indenture contains covenants that limit the ability of the Company and any Restricted Subsidiary to create liens on assets and to engage in sale/leaseback transactions. The Indenture also contains covenants that limit the ability of the Company and, prior to the consummation of the Mergers, of Express Scripts to consolidate, merge or transfer all or substantially all of their respective assets. These covenants are subject to important exceptions and qualifications.

All terms used in this Security which are defined in the Indenture (including in the Appendix thereto) shall have the meanings assigned to them in the Indenture. In the event of a conflict or inconsistency between this Security and the Indenture, the provisions of the Indenture shall govern.

(2) Optional Redemption . At any time prior to Maturity, the Company may at its option redeem all or a part of the Securities upon not more than 60 nor less than 30 days prior notice, at a Redemption Price equal to the greater of: (i) 100% of the aggregate principal amount of any Securities being redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date; or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities to be redeemed (exclusive of unpaid interest accrued thereon to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year comprised of twelve 30-day months) at the Treasury Rate plus 30 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.

 

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(3) Mandatory Redemption . Except as provided in Sections 4 and 5 below, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.

(4) Special Mandatory Redemption . If for any reason (i) the Mergers are not consummated on or prior to the Special Mandatory Redemption Triggering Date or (ii) the Merger Agreement is terminated at any time prior thereto, then the Company shall redeem all the Securities on the Special Mandatory Redemption Date at a price equal to 101% of the aggregate accreted principal amount of such Security, plus accrued and unpaid interest from the date of original issuance to, but excluding, the Special Mandatory Redemption Date (subject to the right of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).

(5) Change of Control Triggering Event . In the event of a Change of Control Triggering Event, the Holders may require the Company to purchase for cash all or a portion of their Securities at a purchase price equal to 101% of the aggregate principal amount of the Securities repurchased, plus accrued and unpaid interest, if any, pursuant to the provisions of Section 10.10 of the Base Indenture.

(6) Registration Rights. The Company is party to a Registration Rights Agreement, dated as of February 9, 2012, among the Company, the Guarantors and the representatives of the Initial Purchasers named therein, pursuant to which it is obligated to pay additional interest on the Securities upon the occurrence of certain events specified in the Registration Rights Agreement.

(7) Global Security . If this Security is a Global Security, then the transfer and exchange of this Security or beneficial interests herein shall be effected through the Depository in accordance with the Indenture (including applicable restrictions on transfer set forth therein, if any) and the procedures of the Depository therefor. The Security Registrar shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the Depository’s Procedures.

(8) Defaults and Remedies . If an Event of Default with respect to this Security occurs and is continuing, the principal of and any unpaid premium and interest on (or, if this Security is an Original Issue Discount Security, such portion of the principal amount of such Securities as may be specified in the terms thereof) all outstanding securities of this series, may be declared due and payable in the manner and with the effect provided in the Indenture. The Holders of at least a majority in principal amount of the Outstanding Securities may rescind or annul that acceleration if all Events of Default with respect to the Securities other than the non-payment of accelerated principal have been cured or waived as provided in the Indenture.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default, and, among other things, the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities shall have made a written request to the Trustee to pursue a remedy in

 

8


respect of such Event of Default as Trustee. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any amounts due on the Securities on or after the respective due dates expressed herein.

(9) Discharge and Defeasance . Subject to certain conditions, the Company at any time shall be entitled to terminate some or all of the Company’s and the Guarantors’ obligations under the Securities, the Guarantees and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be.

(10) Amendment, Supplement and Waiver . The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities. The provisions relating to the Special Mandatory Redemption set forth in Sections 4.2 and 4.3 of the Fifth Supplemental Indenture may not be modified or waived without the written consent of 66 2/3% in aggregate principal amount of the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Outstanding Securities, on behalf of the Holders of all such Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security or such other Security. Certain modifications or amendments to the Indenture require the consent of the Holder of each Outstanding Security affected.

Notwithstanding any other provision of the Indenture or this Security, the Holder of this Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.7 of the Base Indenture) interest on any such Security on the Stated Maturity date expressed herein (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

(11) Denomination, Registration and Transfer . The Securities are in registered form without coupons in minimum denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this Security is transferable only upon surrender of this Security for registration of transfer. Upon surrender for registration of transfer of this Security at the office or agency of the Company in a Place of Payment for this Security, the Company, if the requirements of the Indenture are met, shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of authorized denominations and of like tenor and aggregate principal amount, and having endorsed thereon a Guarantee executed by the Guarantors.

 

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If the requirements of this Indenture are met, then, at the option of the Holder, Securities may be exchanged for other Securities, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, and having endorsed thereon a Guarantee executed by the Guarantor. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee may treat the Person in whose name such Security is registered as the owner thereof for all purposes, whether or not such Security be overdue, and none of the Company, the Guarantors or the Trustee or other such agent shall be affected by notice to the contrary.

(12) Guarantee . Payment of this Security is jointly and severally and fully and unconditionally guaranteed by the Guarantors that have become and continue to be Guarantors pursuant to the Indenture. Guarantors may be released from their obligations under the Indenture and their Guarantees under the circumstances specified under the Indenture.

(13) No Recourse Against Others. None of the Company’s or any Guarantor’s past, present or future directors, officers, employees or shareholders, as such, shall have any liability for any of the Company’s or any Guarantor’s obligations under the Indenture or the Securities or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a Security, each Holder waives and releases all such liability. This waiver and release is part of the consideration for the issuance of the Securities.

(14) Holders’ Compliance with Registration Rights Agreement. Each Holder, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement in respect of this Security, including the obligations of the Holders with respect to a registration and the indemnification of the Company to the extent provided therein.

(15) Governing Law . THE INDENTURE, THIS SECURITY AND ANY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge to the Securityholder a copy of the Indenture which has in it the text of this Security in larger type. Requests may be made to:

Aristotle Holding, Inc.

One Express Scripts Way

St. Louis, Missouri 63121

 

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ABBREVIATIONS

The following abbreviations, when used in the inscription of the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM (= tenant in common)

TEN ENT (= tenants by the entireties (Cust))

JT TEN (= joint tenants with right of survivorship and not as tenants in common)

UNIF GIFT MIN ACT (= under Uniform Gifts to Minors Act)

Additional abbreviations may also be used though not in the above list.

 

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ASSIGNMENT FORM

To assign this Security, fill in the form below:

I or we assign and transfer this Security to

(Print or type assignee’s name, address and zip code)

(Insert assignee’s soc. sec. or tax I.D. No.)

and irrevocably appoint                      agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.

 

 

       
  Date:                          Your Signature:  

 

 

 

Sign exactly as your name appears on the other side of this Security.

In connection with any transfer of any of the Securities evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act after the later of the date of original issuance of such Securities and the last date, if any, on which such Securities were owned by the Company or any Affiliate of the Company, the undersigned confirms that such Securities are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

  (1)         ¨ pursuant to an effective registration statement under the Securities Act; or

 

  (2)         ¨ in the United States to a person whom the seller reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) in a transaction meeting the requirements of Rule 144A; or

 

  (3)         ¨ outside the United States in an offshore transaction in accordance with Rule 904 under the Securities Act in compliance with Rule 904 under the Securities Act of 1933, as amended; or

 

  (4)         ¨ pursuant to the exemption from registration under the Securities Act provided by Rule 144.

Unless one of the boxes is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered

 

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holder thereof; provided , however , that if box (4) is checked, the Trustee shall be entitled to require, prior to registering any such transfer of the Securities, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, as amended.

Signature                

Signature Guarantee:

 

Signature must be

guaranteed

   Signature

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

  

 

 

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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:                     

     

 

  Notice:  

To be executed by

an executive officer

 

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[TO BE ATTACHED TO GLOBAL SECURITIES]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

The following increases or decreases in this Global Security have been made:

 

Date of Exchange    Amount of decrease in
Principal amount of this
Global Security
   Amount of increase in
Principal amount of this
Global Security
   Principal amount of this
Global Security following
such decrease or increase
   Signature of authorized
signatory of Trustee or
Securities Custodian
           
           
           
           
           

 

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OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Security purchased by the Company pursuant to Section 10.10 of the Indenture, check the box:   ¨

¨   If you want to elect to have only part of this Security purchased by the Company pursuant to Section 10.10 of the Indenture, state the amount in principal amount: $            .

 

Date:                     

    Your Signature:  

 

     
     

(Sign exactly as your name appears on the
other side of this Security.)

 

Signature Guarantee:

 

 

  

(Signature must be guaranteed)

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

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EXHIBIT 2

[FORM OF FACE OF EXCHANGE SECURITY

OR PRIVATE EXCHANGE SECURITY] * / ** /

 

*/ If the Security is to be issued in global form add the Global Securities Legend from Exhibit 1 to the Appendix and the attachment from such Exhibit 1 captioned “[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY.”
**/ If the Security is a Private Exchange Security issued in a Private Exchange to an Initial Purchaser holding an unsold portion of its initial allotment, add the Restricted Securities Legend from Exhibit 1 to the Appendix and replace the Assignment Form included in this Exhibit 2 with the Assignment Form included in such Exhibit 1.


ARISTOTLE HOLDING, INC.

2.100% SENIOR NOTE DUE 2015

 

No.                         Principal Amount (US)$        
CUSIP NO.                        
ISIN NO.                        

Aristotle Holding, Inc., a corporation organized and existing under the laws of the State of Delaware (herein called the “ Company ”, which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of                      United States Dollars (U.S.$         ) on February 12, 2015 and to pay interest thereon, from February 9, 2012, or from the most recent Interest Payment Date to which interest has been paid or duly provided for to but excluding the next Interest Payment Date, which shall be February 12 and August 12 of each year, commencing August 12, 2012, at the per annum rate of 2.100%, or as such rate may be adjusted pursuant to the terms hereof (the “ Security Interest Rate ”), until the principal hereof is paid or made available for payment.

The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest, which shall be the day that is 15 days prior to the relevant Interest Payment Date (whether or not a Business Day). Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Securities not less than 10 days prior to the Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any automated quotation system or securities exchange on which the Securities may be quoted or listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will pay interest on overdue principal at the rate borne by this Security, and it will pay interest on overdue installments of interest at the same rate to the extent lawful.

The Place of Payment for this Security will be the corporate trust office of the Trustee at 625 Marquette Avenue, 11th Floor, Minneapolis, Minnesota 55479, or as otherwise provided in the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a Definitive Security (including principal, premium and interest) by mailing a check to the registered address of each Holder thereof as such address appears on the Security Register; provided , however , that payments on a Definitive Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire

 

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transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

ARISTOTLE HOLDING, INC.
By:  

 

Name:  
Title:  

 

Attest:
By:  

 

Name:  
Title:  

 

4


CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated referred to in the within-mentioned Indenture.

Dated:

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:  

 

  Authorized Signatory

 

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[FORM OF REVERSE OF SECURITY]

(1) Indenture . This Security is one of a duly authorized issue of securities of the Company designated as its “ 2.100% Senior Notes due 2015 ” (herein called the “ Securities ”), issued under a Fifth Supplemental Indenture, dated as of February 9, 2012, to an indenture, dated as of November 21, 2011 (as it may be amended or supplemented from time to time in accordance with the terms thereof and herein with the Fifth Supplemental Indenture, collectively, the “ Indenture ”), between the Company, the Guarantors and Wells Fargo Bank, National Association, as Trustee (herein called the “ Trustee ,” which term includes any successor trustee under the Indenture), to which reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The aggregate principal amount of Initial Securities Outstanding at any time may not exceed $1,000,000,000 in aggregate principal amount, except for Securities issued, authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of the Base Indenture and except for any Securities which, pursuant to Section 3.3 of the Base Indenture, are deemed never to have been authenticated and delivered. The Fifth Supplemental Indenture pursuant to which this Security is issued provides that Additional Securities may be issued thereunder, if certain conditions are met. The Initial Securities issued pursuant to the Fifth Supplemental Indenture and all Exchange Securities or Private Exchange Securities issued in exchange therefor will be treated as a single class for all purposes under the Indenture.

The Indenture contains covenants that limit the ability of the Company and any Restricted Subsidiary to create liens on assets and to engage in sale/leaseback transactions. The Indenture also contains covenants that limit the ability of the Company and, prior to the consummation of the Mergers, of Express Scripts to consolidate, merge or transfer all or substantially all of their respective assets. These covenants are subject to important exceptions and qualifications.

All terms used in this Security which are defined in the Indenture (including in the Appendix thereto) shall have the meanings assigned to them in the Indenture. In the event of a conflict or inconsistency between this Security and the Indenture, the provisions of the Indenture shall govern.

(2) Optional Redemption . At any time prior to Maturity, the Company may at its option redeem all or a part of the Securities upon not more than 60 nor less than 30 days prior notice, at a Redemption Price equal to the greater of: (i) 100% of the aggregate principal amount of any Securities being redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date; or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities to be redeemed (exclusive of unpaid interest accrued thereon to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year comprised of twelve 30-day months) at the Treasury Rate plus 30 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.

 

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(3) Mandatory Redemption . Except as provided in Sections 4 and 5 below, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.

(4) Special Mandatory Redemption . If for any reason (i) the Mergers are not consummated on or prior to the Special Mandatory Redemption Triggering Date or (ii) the Merger Agreement is terminated at any time prior thereto, then the Company shall redeem all the Securities on the Special Mandatory Redemption Date at a price equal to 101% of the aggregate accreted principal amount of such Security, plus accrued and unpaid interest from the date of original issuance to, but excluding, the Special Mandatory Redemption Date (subject to the right of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).

(5) Change of Control Triggering Event . In the event of a Change of Control Triggering Event, the Holders may require the Company to purchase for cash all or a portion of their Securities at a purchase price equal to 101% of the aggregate principal amount of the Securities repurchased, plus accrued and unpaid interest, if any, pursuant to the provisions of Section 10.10 of the Base Indenture.

(6) Global Security . If this Security is a Global Security, then the transfer and exchange of this Security or beneficial interests herein shall be effected through the Depository in accordance with the Indenture (including applicable restrictions on transfer set forth therein, if any) and the procedures of the Depository therefor. The Security Registrar shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the Depository’s Procedures.

(7) Defaults and Remedies . If an Event of Default with respect to this Security occurs and is continuing, the principal of and any unpaid premium and interest on (or, if this Security is an Original Issue Discount Security, such portion of the principal amount of such Securities as may be specified in the terms thereof) all outstanding securities of this series, may be declared due and payable in the manner and with the effect provided in the Indenture. The Holders of at least a majority in principal amount of the Outstanding Securities may rescind or annul that acceleration if all Events of Default with respect to the Securities other than the non-payment of accelerated principal have been cured or waived as provided in the Indenture.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default, and, among other things, the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities shall have made a written request to the Trustee to pursue a remedy in respect of such Event of Default as Trustee. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any amounts due on the Securities on or after the respective due dates expressed herein.

(8) Discharge and Defeasance . Subject to certain conditions, the Company at any time shall be entitled to terminate some or all of the Company’s and the Guarantors’

 

7


obligations under the Securities, the Guarantees and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be.

(9) Amendment, Supplement and Waiver . The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities. The provisions relating to the Special Mandatory Redemption set forth in Sections 4.2 and 4.3 of the Fifth Supplemental Indenture may not be modified or waived without the written consent of 66 2/3% in aggregate principal amount of the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Outstanding Securities, on behalf of the Holders of all such Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security or such other Security. Certain modifications or amendments to the Indenture require the consent of the Holder of each Outstanding Security affected.

Notwithstanding any other provision of the Indenture or this Security, the Holder of this Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.7 of the Base Indenture) interest on any such Security on the Stated Maturity date expressed herein (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

(10) Denomination, Registration and Transfer . The Securities are in registered form without coupons in minimum denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this Security is transferable only upon surrender of this Security for registration of transfer. Upon surrender for registration of transfer of this Security at the office or agency of the Company in a Place of Payment for this Security, the Company, if the requirements of the Indenture are met, shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of authorized denominations and of like tenor and aggregate principal amount, and having endorsed thereon a Guarantee executed by the Guarantors.

If the requirements of this Indenture are met, then, at the option of the Holder, Securities may be exchanged for other Securities, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, and having endorsed thereon a Guarantee executed by the Guarantor. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

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Prior to due presentment of this Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee may treat the Person in whose name such Security is registered as the owner thereof for all purposes, whether or not such Security be overdue, and none of the Company, the Guarantors or the Trustee or other such agent shall be affected by notice to the contrary.

(11) Guarantee . Payment of this Security is jointly and severally and fully and unconditionally guaranteed by the Guarantors that have become and continue to be Guarantors pursuant to the Indenture. Guarantors may be released from their obligations under the Indenture and their Guarantees under the circumstances specified under the Indenture.

(12) No Recourse Against Others. None of the Company’s or any Guarantor’s past, present or future directors, officers, employees or shareholders, as such, shall have any liability for any of the Company’s or any Guarantor’s obligations under the Indenture or the Securities or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a Security, each Holder waives and releases all such liability. This waiver and release is part of the consideration for the issuance of the Securities.

(13) [Holders’ Compliance with Registration Rights Agreement. Each Holder, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement in respect of this Security, including the obligations of the Holders with respect to a registration and the indemnification of the Company to the extent provided therein.] 1

(14) Governing Law . THE INDENTURE, THIS SECURITY AND ANY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge to the Securityholder a copy of the Indenture which has in it the text of this Security in larger type. Requests may be made to:

Aristotle Holding, Inc.

One Express Scripts Way

St. Louis, Missouri 63121

 

1  

Delete if this is not a Private Exchange Security.

 

9


ABBREVIATIONS

The following abbreviations, when used in the inscription of the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM (= tenant in common)

TEN ENT (= tenants by the entireties (Cust))

JT TEN (= joint tenants with right of survivorship and not as tenants in common)

UNIF GIFT MIN ACT (= under Uniform Gifts to Minors Act)

Additional abbreviations may also be used though not in the above list.

 

10


ASSIGNMENT FORM

To assign this Security, fill in the form below:

I or we assign and transfer this Security to

(Print or type assignee’s name, address and zip code)

(Insert assignee’s soc. sec. or tax I.D. No.)

and irrevocably appoint                      agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.

 

 

       
  Date:                          Your Signature:  

 

 

 

Sign exactly as your name appears on the other side of this Security.

 

11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Security purchased by the Company pursuant to Section 10.10 of the Indenture, check the box:   ¨

¨ If you want to elect to have only part of this Security purchased by the Company pursuant to Section 10.10 of the Indenture, state the amount in principal amount: $            .

 

  Dated:                        Your Signature:  

 

   

(Sign exactly as your name appears on the
other side of this Security.)

 

  Signature Guarantee:  

 

 

(Signature must be guaranteed)

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

12


EXHIBIT 3

FORM OF GUARANTEE

For value received, each of the Guarantors (which term includes any successor Person under the Indenture) has jointly and severally and fully and unconditionally guaranteed, to the extent set forth in the Indenture, among the Company, the Guarantors and the Trustee and subject to the provisions in the Indenture, (a) the due and punctual payment in full when due of the principal of, premium, if any, and interest on the Securities and all other amounts due and payable under the Indenture and the Securities by the Company and (b) in case of any extension of time of payment or renewal of any Obligations (with or without notice to the Guarantor), that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article XIII of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee, including provisions for the release thereof. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.

 

[NAME OF GUARANTOR(S)]
By:  

 

Name:  

 

Title:  

 

Exhibit 4.2

EXECUTION COPY

 

 

 

SIXTH SUPPLEMENTAL INDENTURE

Dated as of February 9, 2012

Supplementing that Certain

INDENTURE

Dated as of November 21, 2011

 

 

Among

ARISTOTLE HOLDING, INC.,

THE GUARANTORS PARTY HERETO

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee

 

 

2.650% SENIOR NOTES DUE 2017

 

 

 


This Sixth Supplemental Indenture, dated as of February 9, 2012 (the “ Sixth Supplemental Indenture ”), among Aristotle Holding, Inc., a corporation organized and existing under the laws of the State of Delaware, having its principal office at One Express Way, St. Louis, Missouri (herein called the “ Company ”), the Guarantors party hereto and Wells Fargo Bank, National Association, a national banking association, as Trustee hereunder (herein called the “ Trustee ”), supplements that certain Indenture, dated as of November 21, 2011, among the Company, the Guarantors and the Trustee (the “ Base Indenture ” and, together with this Sixth Supplemental Indenture, the “ Indenture ”).

RECITALS OF THE COMPANY

A. The Company, the Guarantors and the Trustee have entered into the Base Indenture, which provides for the issuance from time to time of the Company’s unsecured debentures, notes, or other evidences of indebtedness to be issued in one or more series as provided for in the Base Indenture.

B. The Base Indenture provides that the Securities of each series shall be in substantially the form set forth in the Base Indenture, or in such other form as may be established by or pursuant to a Board Resolution and set forth in an Officers’ Certificate or in one or more supplemental indentures thereto, in each case with such appropriate insertions, omissions, substitutions, and other variations as are required or permitted by the Indenture, and may have notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent therewith, be determined by the officers executing such Securities, as evidenced by their execution thereof.

C. The Company and the Trustee have agreed that the Company shall issue and deliver, and the Trustee shall authenticate, a new series of Securities to be known as the “2.650% Senior Notes due 2017” pursuant to the terms of this Sixth Supplemental Indenture and substantially in the form set forth in Appendix A hereto (together with the Exhibits thereto, the “ Appendix ”), in each case with such appropriate insertions, omissions, substitutions, and other variations as are required or permitted by the Indenture, and with such notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent herewith, be determined by the officers executing such Securities, as evidenced by their execution of such Securities.

ARTICLE I

Issuance of Securities

SECTION 1.1. Issuance of Securities; Principal Amount; Maturity; Title.

(1) On February 9, 2012, the Company shall issue and deliver to the Trustee, and the Trustee shall authenticate, the Initial Securities substantially in the form


set forth in the Appendix, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and with such notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent herewith, be determined by the officers executing such Securities, as evidenced by their execution of such Securities.

(2) Pursuant to the terms hereof and Section 3.1 of the Base Indenture, the Company hereby creates a series of Securities designated as the “2.650% Senior Notes due 2017” of the Company (including both the Initial Securities and any Additional Securities (as defined below), the “ Securities ”), which Securities shall be deemed “Securities” for all purposes under the Indenture.

(3) The Initial Securities to be issued pursuant to this Sixth Supplemental Indenture shall be issued in the aggregate principal amount of $1,500,000,000 and shall mature on February 15, 2017 unless the Securities are redeemed prior to that date as described in Sections 4.1 or 4.2 of this Sixth Supplemental Indenture. The aggregate principal amount of Initial Securities Outstanding at any time may not exceed $1,500,000,000, except for Securities issued, authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of the Base Indenture and except for any Securities which, pursuant to Section 3.3 of the Base Indenture, are deemed never to have been authenticated and delivered; provided that the Company may without the consent of the Holders, issue additional Securities hereunder as part of the same series and on the same terms and conditions (except for the issue date, issue price and, in some cases, the first Interest Payment Date) (and having the same Guarantors) as the Initial Securities (“ Additional Securities ”).

(4) The Securities shall be issued only in fully registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000.

SECTION 1.2. Interest.

(1) Interest on a Security will accrue at the per annum rate of 2.650% (the “ Security Interest Rate ”), from and including the date specified on the face of such Security until the principal thereof is paid, deemed paid, or made available for payment and, in each case, will be paid on the basis of a 360-day year comprised of twelve 30-day months.

(2) The Company shall pay interest on the Securities semi-annually in arrears on February 15 and August 15 of each year (each, an “ Interest Payment Date ”), commencing August 15, 2012.

(3) Interest shall be paid on each Interest Payment Date to the registered Holders of the Securities after the close of business on the Regular Record Date.


(4) The Place of Payment for this Security shall be the corporate trust office of the Trustee at 625 Marquette Avenue, 11th Floor, Minneapolis, Minnesota 55479. Notwithstanding the foregoing, (i) payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository and (ii) the Company will make all payments in respect of a Definitive Security (including principal, premium and interest) by mailing a check to the registered address of each Holder thereof as such address appears in the Security Register; provided , however , that payments on a Definitive Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

(5) Neither the Company nor the Trustee shall impose any service charge for any transfer or exchange of a Security. However, the Company may ask Holders of the Securities to pay any taxes or other governmental charges in connection with a transfer or exchange of Securities.

(6) If any Interest Payment Date, Maturity Date or Redemption Date falls on a day that is not a Business Day in the City of New York, the Company will make the required payment of principal, premium, if any, and/or interest on the next succeeding Business Day as if it were made on the date payment was due, and no interest will accrue on the amount so payable for the period from and after that Interest Payment Date, the Maturity Date or earlier Redemption Date, as the case may be, to such next succeeding Business Day.

SECTION 1.3. Additional Interest.

The Company is party to a Registration Rights Agreement, dated as of February 9, 2012, among the Company, the Guarantors and the representatives of the Initial Purchasers named therein, pursuant to which it is obligated to pay additional interest on the Securities upon the occurrence of certain events specified in the Registration Rights Agreement.

Subject to the provisions of the Registration Rights Agreement, if a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Security from and including the date on which such Registration Default occurs to but excluding the date on which all such Registration Defaults have been cured or the Securities cease to be Transfer Restricted Securities (as defined in the Registration Rights Agreement), whichever is earlier, at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default, and such rate will increase by 0.25% per annum on the 91st day following the occurrence of such Registration Default (provided that the maximum additional interest rate during the initial 90-day period shall be 0.25% per annum and the maximum additional interest rate thereafter shall be 0.50% per annum, in each case regardless of the number of Registration Defaults that have occurred and are continuing). The Company will pay such additional interest on regular Interest Payment Dates.


SECTION 1.4. Relationship with Base Indenture.

The terms and provisions contained in the Base Indenture will constitute, and are hereby expressly made, a part of this Sixth Supplemental Indenture. However, to the extent any provision of the Base Indenture conflicts with the express provisions of this Sixth Supplemental Indenture, the provisions of this Sixth Supplemental Indenture will govern and be controlling; provided , however , that the forms and provisions of this Sixth Supplemental Indenture modify and amend the terms of the Base Indenture only with respect to the Securities.

ARTICLE II

Definitions and Other Provisions of General Application

SECTION 2.1. Definitions.

The terms defined in this Section 2.1 (except as herein otherwise expressly provided or unless the context of this Sixth Supplemental Indenture otherwise requires) for all purposes of this Sixth Supplemental Indenture and of any indenture supplemental hereto have the respective meanings specified in this Section 2.1. All other terms used in this Sixth Supplemental Indenture that are defined in the Base Indenture or the Trust Indenture Act, either directly or by reference therein (except as herein otherwise expressly provided or unless the context of this Sixth Supplemental Indenture otherwise requires), have the respective meanings assigned to such terms in the Base Indenture or the Trust Indenture Act, as the case may be, as in force at the date of this Sixth Supplemental Indenture as originally executed; provided that any term that is defined in both the Base Indenture and this Sixth Supplemental Indenture shall have the meaning assigned to such term in this Sixth Supplemental Indenture.

Additional Securities ” has the meaning specified in Section 1.1(3).

Appendix ” has the meaning specified in the recitals to this Sixth Supplemental Indenture.

Comparable Treasury Issue ” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of the Securities.

Comparable Treasury Price ” means with respect to any Redemption Date: (i) the average of five Reference Treasury Dealer Quotations for the Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than five Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations for the Redemption Date so obtained.


Definitive Security ” has the meaning specified in Section 1.1 of the Appendix.

Exchange Securities ” has the meaning specified in Section 1.1 of the Appendix.

Independent Investment Banker ” means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.

Initial Purchaser ” has the meaning specified in Section 1.1 of the Appendix.

Initial Securities ” means Securities in an aggregate principal amount of up to $1,500,000,000 initially issued under this Sixth Supplemental Indenture in accordance with Section 1.1(3).

Interest Payment Date ” has the meaning specified in Section 1.2(2).

Maturity Date ” means February 15, 2017.

Mergers ” means the merger of Aristotle Merger Sub, Inc., a Delaware corporation and Wholly Owned Subsidiary of the Company, with and into Express Scripts, and the merger of Plato Merger Sub, Inc., a Delaware corporation and Wholly Owned Subsidiary of the Company, with and into Medco pursuant to the Merger Agreement.

Private Exchange Securities ” has the meaning specified in Section 1.1 of the Appendix.

Reference Treasury Dealer ” means each of Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC (in each case, or their Affiliates) and three other primary United States government securities dealers selected by the Company, and each of their respective successors; provided that if any of the aforementioned Reference Treasury Dealers resigns, then the respective successor will be a primary United States government securities dealer in The City of New York selected by the Company.

Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at approximately 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.

Registration Rights Agreement ” has the meaning set forth in Section 1.1 of the Appendix.


Regular Record Date ” for interest payable in respect of any Security on any Interest Payment Date means the day that is 15 days prior to the relevant Interest Payment Date (whether or not a Business Day).

Security Interest Rate ” has the meaning specified in Section 1.2(1).

Securities ” has the meaning specified in Section 1.1(2).

Special Mandatory Redemption Date ” means the earlier to occur of (i) the 20th day (or if such day is not a Business Day, the first Business Day thereafter) following the Special Mandatory Redemption Triggering Date, if the Mergers have not been completed on or prior to the Special Mandatory Redemption Triggering Date, or (ii) the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the termination of the Merger Agreement for any reason.

Special Mandatory Redemption Notice ” has the meaning set forth in Section 4.3 hereto.

Special Mandatory Redemption Price ” has the meaning set forth in Section 4.2 hereto.

Special Mandatory Redemption Triggering Date ” means April 20, 2012; provided that such date may be extended by the Company on one or more occasions to a date not later than July 20, 2012, in the event the conditions set forth in Sections 6.1(c), 6.1(e) or 6.2(d) of the Merger Agreement have not been satisfied or waived by the fifth Business Day (as defined in the Merger Agreement) prior to April 20, 2012; provided , further , that such extended date may be further extended by the Company on one or more occasions to a date not later than October 22, 2012, in the event that the conditions set forth in Sections 6.1(c), 6.1(e) or 6.2(d) of the Merger Agreement have not been satisfied or waived by the fifth Business Day (as defined in the Merger Agreement) prior to the initially extended date; provided , however , that, in any case, (x) the Special Mandatory Redemption Triggering Date shall only be extended if and when the Outside Date (as defined in the Merger Agreement) is extended pursuant to Section 7.1(b)(ii) of the Merger Agreement, and the Special Mandatory Redemption Triggering Date, as so extended, shall be the same date as the Outside Date, as so extended, and (y) if the Special Mandatory Redemption Triggering Date is extended in accordance with the foregoing, the term “Special Mandatory Redemption Triggering Date” shall mean such date as so extended.

Treasury Rate ” means, with respect to any Redemption Date, the rate per year equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.


ARTICLE III

Security Forms

SECTION 3.1. Form Generally.

(1) Provisions relating to the Initial Securities, the Exchange Securities and the Private Exchange Securities are set forth in the Appendix, which is hereby incorporated in, and expressly made part of, this Indenture. The Initial Securities and the Trustee’s certificate of authentication with respect thereto shall be substantially in the form of Exhibit 1 to the Appendix. The Exchange Securities and the Private Exchange Securities and the Trustee’s certificate of authentication with respect thereto shall be substantially in the form of Exhibit 2 to the Appendix. The Securities may have notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent herewith, be determined by the officers executing such Securities (execution thereof to be conclusive evidence of such approval). Each Security shall be in fully registered form and shall be dated the date of its authentication. The terms of the Securities set forth in the Appendix are part of the terms of this Sixth Supplemental Indenture. The Guarantees shall be in substantially the form set forth in Exhibit 3 to the Appendix.

(2) The Securities shall be printed, lithographed, typewritten or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any automated quotation system or securities exchange (including on steel engraved borders if so required by any automated quotation system or securities exchange upon which the Securities may be quoted or listed) on which the Securities may be quoted or listed, as the case may be, all as determined by the officers executing such Securities, as evidenced by their execution thereof.

ARTICLE IV

Redemption of Securities

SECTION 4.1. Optional Redemption.

The Company may, at its option, redeem the Securities, in whole or from time to time in part, prior to the Maturity Date at a Redemption Price equal to the greater of: (i) 100% of the aggregate principal amount of Securities to be redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date; or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities to be redeemed (exclusive of unpaid interest accrued thereon to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year comprised of twelve 30-day months) at the Treasury Rate plus 35 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.


SECTION 4.2. Special Mandatory Redemption.

If for any reason (i) the Mergers are not consummated on or prior to the Special Mandatory Redemption Triggering Date or (ii) the Merger Agreement is terminated at any time prior thereto, then the Company shall redeem all the Securities on the Special Mandatory Redemption Date at a price equal to 101% of the aggregate accreted principal amount of the Securities, plus accrued and unpaid interest from the date of original issuance to, but excluding, the Special Mandatory Redemption Date (the “ Special Mandatory Redemption Price ”) (subject to the right of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).

SECTION 4.3. Special Mandatory Redemption Procedures.

(1) Notice of redemption pursuant to Section 4.2 (a “ Special Mandatory Redemption Notice ”) shall be mailed, with a written copy to the Trustee, by first class mail, postage prepaid, within 10 Business Days after the occurrence of the event triggering redemption to each Holder of Securities at such Holder’s address as shown in the Security Register. Failure to give notice by mailing in the manner herein provided to such Holder, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities.

All Special Mandatory Redemption Notices shall state:

(i) the Special Mandatory Redemption Date;

(ii) the Special Mandatory Redemption Price;

(iii) that on the Special Mandatory Redemption Date the Special Mandatory Redemption Price will become due and payable with respect to each Security;

(iv) the place or places where such Securities are to be surrendered for payment of the Special Mandatory Redemption Price;

(v) the CUSIP, ISIN or Common Code numbers of such Securities, if any (or any other numbers used by the Depositary to identify such Securities); and

(vi) if funds sufficient to pay the Special Mandatory Redemption Price of all Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Paying Agent on or before such Special Mandatory Redemption Date, that such Securities shall cease to bear interest on and after such Special Mandatory Redemption Date.

(2) Each Special Mandatory Redemption Notice having been given as aforesaid, the Securities shall, on the Special Mandatory Redemption Date, become due and payable at the Special Mandatory Redemption Price therein specified. If funds sufficient to pay the Special Mandatory Redemption Price of all Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Paying Agent on or before such Special Mandatory Redemption Date, the Securities shall cease


to bear interest on and after such Special Mandatory Redemption Date (unless the Company shall default on the payment of the Special Mandatory Redemption Price). Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Special Mandatory Redemption Price; provided, however, that installments of interest whose Interest Payment Date is on or prior to the Special Mandatory Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date according to their terms and the provisions of Section 3.7 of the Indenture.

(3) If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof shall, until paid, bear interest from the Special Mandatory Redemption Date at the rate borne by the Security.

ARTICLE V

Remedies

SECTION 5.1. Events of Default.

With respect to the Securities, Section 5.1 of the Base Indenture is hereby amended to add the following as Section 5.1(9):

(i) the Company fails to timely deliver a Special Mandatory Redemption Notice when required.

ARTICLE VI

Reports by Company

SECTION 6.1. Reports by Express Scripts or the Company.

With respect to the Securities, Section 7.4 of the Base Indenture is hereby amended to add the following paragraph to the end of such Section:

In addition, prior to the consummation of the Mergers, Express Scripts and, following the consummation of the Mergers, the Company, shall furnish, at the Company’s expense, to the Holders and prospective Holders, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision) under the Securities Act so long as any Securities are not freely transferable under the Securities Act.


ARTICLE VII

Supplemental Indentures

SECTION 7.1. Supplemental Indentures Without Consent of Holders.

Section 9.1 of the Base Indenture shall not be applicable to the Securities.

Without seeking the consent of any Holders, the Company, together with the Trustee, at any time and from time to time, may modify and amend the Base Indenture, this Sixth Supplemental Indenture and the terms of the Securities to:

(1) allow the Company’s or any Guarantor’s successor (or successive successors) to assume the Company’s or such Guarantor’s obligations under the Base Indenture, this Sixth Supplemental Indenture and the Securities pursuant to the provisions under Article VIII or Section 13.15 of the Base Indenture;

(2) add to the covenants of the Company for the benefit of the Holders of the Securities or to surrender any right or power herein conferred upon the Company under this Sixth Supplemental Indenture, the Base Indenture or the Securities;

(3) add any additional Events of Default;

(4) secure the Securities;

(5) provide for a successor Trustee with respect to the Securities and add to or change any of the provisions of the Base Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11 of the Base Indenture;

(6) add or release a Guarantor as required or permitted by the Indenture;

(7) cure any ambiguity, defect or inconsistency;

(8) amend the provisions of the Base Indenture or this Sixth Supplemental Indenture relating to the transfer or legending of the Securities; provided that (i) compliance with the Base Indenture or this Sixth Supplemental Indenture as so amended would not result in Securities being transferred in violation of the Securities Act or any other applicable securities law and (ii) such amendment does not adversely affect the interests of the Holders of the Securities or owners of beneficial interests in Securities; or

(9) make any other amendment or supplement to the Base Indenture, this Sixth Supplemental Indenture or the Securities, as long as that amendment or supplement does not adversely affect the interests of the Holders of any Securities in any material respect (to be evidenced by an Opinion of Counsel).

No amendment to cure any ambiguity, defect or inconsistency in the Base Indenture, this Sixth Supplemental Indenture or the Securities made solely to conform to


the provisions of the Base Indenture, this Sixth Supplemental Indenture or the Securities to any description of the Securities in the offering circular therefor, to the extent that such provision in the offering circular was intended to be a verbatim recitation of a provision of the Base Indenture, this Sixth Supplemental Indenture or the Securities, shall be deemed to adversely affect the interests of the Holders of any Securities.

SECTION 7.2. Supplemental Indentures With Consent of Holders.

Section 9.2 of the Base Indenture shall not be applicable to the Securities.

The Company, together with the Trustee, may modify and amend this Sixth Supplemental Indenture, the Base Indenture and the terms of the Securities with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities; provided that no modification or amendment may, without the consent of each affected Holder of each Security:

(1) change the Stated Maturity of the principal of, or any installment of or interest on, the Securities;

(2) reduce the principal amount of, or any premium, if any, or rate of interest on, the Securities;

(3) reduce any amount payable upon the redemption of the Securities or, except as expressly provided elsewhere herein, change the time at which the Securities may be redeemed pursuant to Section 4.1 hereof;

(4) change any Place of Payment where, or the currency in which, any principal of, or premium, if any, or interest on, the Securities are payable;

(5) impair the right of any Holder of a Security to receive payment of principal of and interest on such Holder’s Security on or after the Stated Maturity or Redemption Date or to institute suit for the enforcement of any payment on, or with respect to, any Security on or after the Stated Maturity or Redemption Date;

(6) reduce the percentage in principal amount of the Outstanding Securities, the consent of whose Holders is required for modification or amendment of the Base Indenture or this Sixth Supplemental Indenture, for waiver of compliance with certain provisions of the Base Indenture or this Sixth Supplemental Indenture or waiver of certain Defaults;

(7) release any Guarantor from any of its obligations under its Guarantee or the Base Indenture or this Sixth Supplemental Indenture other than in accordance with the terms thereof or hereof; or

(8) modify any of the above provisions.

Any modification or amendment to, or waiver of, the provisions of this Sixth Supplemental Indenture and the terms of the Securities that relate to the Special


Mandatory Redemption set forth in Sections 4.2 or 4.3 shall require the written consent of the Holders of at least 66 2/3% in aggregate principal amount of the Outstanding Securities. In addition, any modification or amendment to, or waiver of, the provisions in the Indenture and the terms of the Securities that relate to the items set forth in Section 10.10 of the Base Indenture shall require the written consent of at least a majority in principal amount of the Outstanding Securities.

In addition, the Holders of at least a majority in aggregate principal amount of the Outstanding Securities may, on behalf of the Holders of all the Securities, waive any past default under the Base Indenture or this Sixth Supplemental Indenture and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any Securities or in respect of a covenant or provision that under the Base Indenture or this Sixth Supplemental Indenture cannot be modified or amended without the consent of each Holder. In addition, the Holders of at least a majority in aggregate principal amount of the Outstanding Securities may, on behalf of the Holders of all Securities, waive compliance with the Company’s covenants described under Sections 10.8 and 10.9 of the Indenture.

 

ARTICLE VIII

Miscellaneous.

SECTION 8.1. Governing Law; Waiver of Jury Trial

THIS SIXTH SUPPLEMENTAL INDENTURE, THE GUARANTEES AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SIXTH SUPPLEMENTAL INDENTURE, THE GUARANTEES, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

SECTION 8.2. Supplemental Indenture May be Executed in Counterparts.

This Sixth Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Sixth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Sixth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Sixth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.


SECTION 8.3. Separability Clause.

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.


IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Indenture to be duly executed all as of the day and year first above written.

[Signature Pages To Follow]


ARISTOTLE HOLDING, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President
EXPRESS SCRIPTS, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President
AIRPORT HOLDINGS, LLC
ESI REALTY, LLC
By: Express Scripts, Inc., as sole Member
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President

[Sixth Supplemental Indenture]


BYFIELD DRUG, INC.

CARE CONTINUUM, INC.

CFI OF NEW JERSEY, INC.

CHESAPEAKE INFUSION, INC.

CONNECTYOURCARE COMPANY LLC

CONNECTYOURCARE, LLC

CURASCRIPT PBM SERVICES INC.

DIVERSIFIED PHARMACEUTICAL SERVICES, INC.

ESI ACQUISITION, INC.

ESI CLAIMS, INC.

ESI ENTERPRISES, LLC

ESI MAIL ORDER PROCESSING, INC.

EXPRESS SCRIPTS CANADA HOLDING CO.

EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC

EXPRESS SCRIPTS SERVICES COMPANY

FRECO, INC.

FREEDOM SERVICE COMPANY, LLC

HEALTHBRIDGE, INC.

HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC.

iBIOLOGIC, INC.

IVTX, INC.

LYNNFIELD COMPOUNDING CENTER, INC.

LYNNFIELD DRUG, INC.

MATRIX GPO LLC

NATIONAL PRESCRIPTION ADMINISTRATORS, INC.

PRIORITY HEALTHCARE CORPORATION

PRIORITY HEALTHCARE CORPORATION WEST

PRIORITY HEALTHCARE DISTRIBUTION, INC.

PRIORITY HEALTHCARE PHARMACY, INC.

PRIORITYHEALTHCARE.COM, INC.

SINUSPHARMACY, INC.

SPECIALTY INFUSION PHARMACY, INC.

SPECTRACARE, INC.

SPECTRACARE HEALTH CARE VENTURES, INC.

SPECTRACARE INFUSION PHARMACY, INC.

VALUE HEALTH, INC.

YOURPHARMACY.COM, INC.

By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President

[Sixth Supplemental Indenture]


CURASCRIPT, INC.

ESI MAIL PHARMACY SERVICE, INC.

EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.

EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.

MOORESVILLE ON-SITE PHARMACY, LLC

By:  

/s/ Patrick McNamee

  Name:   Patrick McNamee
  Title:   President

[Sixth Supplemental Indenture]


ESI-GP HOLDINGS, INC.
ESI RESOURCES, INC.
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President

ESI PARTNERSHIP

By: Express Scripts, Inc., as Partner

By:  

/s/ Martin P. Akins

  Name:   Martin P. Akins
  Title:   Vice President and Deputy General Counsel

By: ESI-GP Holdings, Inc., as Partner

By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President

[Sixth Supplemental Indenture]


SPECTRACARE OF INDIANA
By:   Spectracare, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
By:   Care Continuum, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
EXPRESS SCRIPTS MSA, LLC
EXPRESS SCRIPTS WC, INC.
By:  

/s/ Edward Ignaczak

  Name:   Edward Ignaczak
  Title:   President

EXPRESS SCRIPTS SENIOR CARE, INC.

EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC.

By:  

/s/ George Paz

  Name:   George Paz
  Title:   President

EXPRESS SCRIPTS CANADA HOLDING, LLC

By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President

[Sixth Supplemental Indenture]


Wells Fargo Bank, National Association,
As Trustee
By:  

/s/ Richard Prokosch

  Name:   Richard Prokosch
  Title:   Vice President

[Sixth Supplemental Indenture]


RULE 144A/REGULATION S APPENDIX

PROVISIONS RELATING TO INITIAL SECURITIES,

PRIVATE EXCHANGE SECURITIES

AND EXCHANGE SECURITIES

 

  1. Definitions

1.1 Definitions

For the purposes of this Appendix the following terms shall have the meanings indicated below:

Applicable Procedures ” means, with respect to any transfer or transaction prior to the expiration of the Restricted Period and involving a Regulation S Global Security or beneficial interest therein, the rules and procedures of the Depository for such a transfer or transaction, to the extent applicable and as in effect from time to time.

Definitive Security ” means a certificated Initial Security or Exchange Security or Private Exchange Security bearing, if required, the appropriate restricted securities legend set forth in Section 2.3(e).

Depository ” means The Depository Trust Company, its nominees and their respective successors.

Exchange Securities ” means any securities issued pursuant to the Indenture in connection with a Registered Exchange Offer pursuant to a Registration Rights Agreement.

Initial Purchaser ” means with respect to each issuance of Initial Securities, the Persons purchasing such Initial Securities under the related Purchase Agreement.

Initial Securities ” means any securities other than Exchange Securities and Private Exchange Securities issued pursuant to the Indenture.

Issue Date ” means the date on which Initial Securities are issued pursuant to a supplemental indenture to the Base Indenture or an Officers’ Certificate pursuant to Section 3.1 of the Base Indenture.

Private Exchange ” means the offer by the Company, pursuant to a Registration Rights Agreement, to the Initial Purchaser to issue and deliver to the Initial Purchaser, in exchange for the Initial Securities held by the Initial Purchaser as part of its initial distribution, a like aggregate principal amount of Private Exchange Securities.

Private Exchange Securities ” means any securities issued in connection with a Private Exchange.


Purchase Agreement ” means with respect to each issuance of Initial Securities, the purchase agreement or underwriting agreement among the Company, the Guarantors and the Persons purchasing such Securities.

QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

Registered Exchange Offer ” means an offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Securities, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of Exchange Securities registered under the Securities Act.

Registration Rights Agreement ” means, with respect to each issuance of Securities issued in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, among the Company, the Guarantors and the Persons purchasing such Securities under the related Purchase Agreement.

Restricted Period ” means, with respect to any Securities, the period of 40 consecutive days beginning on and including the later of (i) the day on which such Securities are first offered to Persons other than distributors (as defined in Regulation S under the Securities Act) in reliance on Regulation S and (ii) the issue date with respect to such Securities.

Rule 144A Securities ” means all Securities offered and sold to QIBs in reliance on Rule 144A.

Securities Act ” means the Securities Act of 1933, as amended.

Securities Custodian ” means the custodian with respect to a Global Security (as appointed by the Depository), or any successor Person thereto and shall initially be the Trustee.

Shelf Registration Statement ” means the shelf registration statement filed by the Company in connection with the offer and sale of Initial Securities or Private Exchange Securities pursuant to a Registration Rights Agreement.

Transfer Restricted Securities ” means Securities that bear or are required to bear the legend relating to restrictions on transfer relating to the Securities Act set forth in Section 2.3(e) hereto.

 

2


1.2 Other Definitions

 

Term

  

Defined in Section:

“Agent Members”

   2.1(b)

“Clearstream, Luxembourg”

   2.1(a)

“Euroclear”

   2.1(a)

“Global Securities”

   2.1(a)

“Regulation S”

   2.1(a)

“Regulation S Global Security”

   2.1(a)

“Regulation S Permanent Global Security”

   2.1(a)

“Regulation S Temporary Global Security”

   2.1(a)

“Restricted Securities Legend”

   2.3(e)

“Rule 144A”

   2.1(a)

“Rule 144A Global Security”

   2.1(a)

 

  2. The Securities .

2.1 (a)  Form and Dating. The Initial Securities were offered and sold by the Company pursuant to a Purchase Agreement. The Initial Securities will be resold initially only to (i) QIBs in reliance on Rule 144A under the Securities Act (“ Rule 144A ”) and (ii) in offshore transactions to Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S under the Securities Act (“ Regulation S ”). Initial Securities may thereafter be transferred to, among others, QIBs and purchasers in reliance on Regulation S, subject to the restrictions on transfer set forth herein. Initial Securities initially resold pursuant to Rule 144A shall be issued initially in the form of one or more securities in registered, global form (collectively, the “ Rule 144A Global Security ”); and Initial Securities initially resold pursuant to Regulation S shall be issued initially in the form of one or more temporary securities in registered, global form (collectively, the “ Regulation S Temporary Global Security ”), in each case without interest coupons and with the global securities legend and the applicable restricted securities legend set forth Section 2.3(e) hereto, which shall be deposited on behalf of the purchasers of the Initial Securities represented thereby with the Securities Custodian and registered in the name of the Depository or a nominee of the Depository, duly executed by the Company and authenticated by the Trustee as provided in the Base Indenture. Until the expiration of the Restricted Period, beneficial ownership interests in the Regulation S Temporary Global Securities may be held only through Euroclear Bank S.A./N.V., as operator of the Euroclear System (“ Euroclear ”), and Clearstream Banking, société anonyme (“ Clearstream,

 

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Luxembourg ”), as indirect participants in DTC, unless transferred to a Person that takes delivery through a Rule 144A Global Security in accordance with the certification requirements described in the second succeeding paragraph below. Except as set forth in this Section 2.1(a), beneficial ownership interests in a Regulation S Temporary Global Security will not be exchangeable for interests in the Rule 144A Global Security or any other Security prior to the expiration of the Restricted Period and then, after the expiration of the Restricted Period, may be exchanged for one or more permanent securities in registered, global form without interest coupons (collectively, the “ Regulation S Permanent Global Security ” and, together with the Regulation S Temporary Global Security, the “ Regulation S Global Security ”) or a Definitive Security upon (1) delivery to DTC of certification of compliance with the transfer restrictions applicable to the Securities and pursuant to Regulation S as provided in the Indenture, (2) a certification in form satisfactory to the Trustee that beneficial ownership interests in such Regulation S Temporary Global Security are owned either by non-U.S. persons or U.S. persons who purchased such interests in a transaction that did not require registration under the Securities Act and (3) in the case of an exchange for Definitive Securities, in compliance with the requirements described in Section 2.4(a) of this Appendix.

Definitive Securities may not be exchanged for beneficial interests in any Global Security unless the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that such transfer will comply with the appropriate transfer restrictions applicable to such Securities.

Prior to the expiration of the Restricted Period, beneficial interests in Regulation S Global Securities may be exchanged for interests in Rule 144A Global Securities only if (1) such exchange occurs in connection with a transfer of Securities pursuant to Rule 144A and (2) the transferor of the beneficial interest in the Regulation S Global Security first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that the beneficial interest in the Regulation S Global Security is being transferred to a Person (a) whom the transferor reasonably believes to be a QIB, (b) is purchasing for its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A, and (c) in accordance with all applicable securities laws of the states of the United States and other jurisdictions.

Beneficial interests in a Rule 144A Global Security may be transferred to a Person who takes delivery in the form of an interest in a Regulation S Global Security, whether before or after the expiration of the Restricted Period, only if the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if available) under the Securities Act.

The Rule 144A Global Security, the Regulation S Global Security and any Global Securities in fully registered form without the Restricted Securities Legend are collectively referred to herein as “ Global Securities .” The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided.

(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Security deposited with or on behalf of the Depository.

 

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The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver initially one or more Global Securities that (a) shall be registered in the name of the Depository for such Global Security or Global Securities or the nominee of such Depository and (b) shall be delivered by the Trustee to such Depository or pursuant to such Depository’s instructions or held by the Trustee as custodian for the Depository.

Members of, or participants in, the Depository (“ Agent Members ”) shall have no rights under the Indenture with respect to any Global Security held on their behalf by the Depository or by the Trustee as the custodian of the Depository or under such Global Security, and the Company, the Trustee and any agent of the Company or the Trustee shall be entitled to treat the Depository as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices of such Depository governing the exercise of the rights of a holder of a beneficial interest in any Global Security.

(c) Definitive Securities. Except as provided in this Section 2.1 or Section 2.3 or 2.4, owners of beneficial interests in Global Securities shall not be entitled to receive physical delivery of Definitive Securities.

2.2 Authentication.  The Trustee shall authenticate and deliver: (1) on the Issue Date, Initial Securities in an aggregate principal amount specified in the written order of the Company pursuant to Section 3.3 of the Indenture, (2) Exchange Securities or Private Exchange Securities for issue only in a Registered Exchange Offer or a Private Exchange, respectively, pursuant to a Registration Rights Agreement, for a like principal amount of Initial Securities, and (3) a Global Security without the Restricted Securities Legend pursuant to Section 2.3(e) of this Appendix, in each case upon a Company Order. Such Company Order shall specify the amount of the Securities to be authenticated and the date on which the original issue of Securities is to be authenticated.

2.3 Transfer and Exchange.

(a) Transfer and Exchange of Definitive Securities . When Definitive Securities are presented to the Security Registrar with a request:

 

  (x) to register the transfer of such Definitive Securities; or

 

  (y) to exchange such Definitive Securities for an equal principal amount of Definitive Securities of other authorized denominations,

the Security Registrar shall register the transfer or make the exchange as requested pursuant to the terms of the Indenture and if its reasonable requirements for such transaction are met; provided , however , that the Definitive Securities surrendered for transfer or exchange:

(i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing; and

 

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(ii) if such Definitive Securities are required to bear a restricted securities legend, they are being transferred or exchanged pursuant to an effective registration statement under the Securities Act, pursuant to Section 2.3(b) or pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:

(A) if such Definitive Securities are being delivered to the Security Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or

(B) if such Definitive Securities are being transferred to the Company, a certification to that effect; or

(C) if such Definitive Securities are being transferred (x) pursuant to an exemption from registration in accordance with Rule 144A, Regulation S or Rule 144 under the Securities Act; or (y) in reliance upon another exemption from the requirements of the Securities Act: (i) a certification to that effect (in the form set forth on the reverse of the Security) and (ii) if the Company so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section 2.3(e)(i).

(b) Restrictions on Transfer of a Definitive Security for a Beneficial Interest in a Global Security. A Definitive Security may not be exchanged for a beneficial interest in a Rule 144A Global Security or a Regulation S Global Security except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:

(i) certification, in the form set forth on the reverse of the Security, that such Definitive Security is either (A) being transferred to a QIB in accordance with Rule 144A or (B) being transferred after expiration of the Restricted Period by a Person who initially purchased such Security in reliance on Regulation S to a buyer who elects to hold its interest in such Security in the form of a beneficial interest in the Regulation S Global Security; and

(ii) written instructions directing the Trustee to make, or to direct the Securities Custodian to make, an adjustment on its books and records with respect to such Rule 144A Global Security (in the case of a transfer pursuant to clause (b)(i)(A)) or Regulation S Global Security (in the case of a transfer pursuant to clause (b)(i)(B)) to reflect an increase in the aggregate principal amount of the Securities represented by the Rule 144A Global Security or Regulation S Global Security, as applicable, such instructions to contain information regarding the Depository account to be credited with such increase,

then the Trustee shall cancel such Definitive Security and cause, or direct the Securities Custodian to cause, in accordance with the standing instructions and procedures existing between the Depository and the Securities Custodian, the aggregate principal amount of Securities

 

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represented by the Rule 144A Global Security or Regulation S Global Security, as applicable, to be increased by the aggregate principal amount of the Definitive Security to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Global Security or Regulation S Global Security, as applicable, equal to the principal amount of the Definitive Security so canceled. If no Rule 144A Global Securities or Regulation S Global Securities, as applicable, are then outstanding, the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officers’ Certificate of the Company, a new Rule 144A Global Security or Regulation S Global Security, as applicable, in the appropriate principal amount.

(c) Transfer and Exchange of Global Securities.

(i) The transfer and exchange of Global Securities or beneficial interests therein shall be effected through the Depository, in accordance with the Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor. A transferor of a beneficial interest in a Global Security shall deliver to the Security Registrar a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository to be credited with a beneficial interest in the Global Security. The Security Registrar shall, in accordance with such instructions instruct the Depository to credit to the account of the Person specified in such instructions a beneficial interest in the Global Security and to debit the account of the Person making the transfer in an amount equal to the beneficial interest in the Global Security being transferred.

(ii) If the proposed transfer is a transfer of a beneficial interest in one Global Security to a beneficial interest in another Global Security, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Security to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Security Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Security from which such interest is being transferred.

(iii) Notwithstanding any other provisions of this Appendix (other than the provisions set forth in Section 2.4), a Global Security may not be transferred as a whole except by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.

(iv) In the event that a Global Security is exchanged for Definitive Securities pursuant to Section 2.4 of this Appendix, prior to the consummation of a Registered Exchange Offer or the effectiveness of a Shelf Registration Statement with respect to such Securities, such Securities may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 2.3 (including the certification requirements set forth on the reverse of the Initial Securities intended to ensure that such transfers comply with Rule 144A, Regulation S or another applicable exemption under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company.

 

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(d) Restrictions on Transfer of Regulation S Global Securities. During the Restricted Period, beneficial ownership interests in Regulation S Global Securities may only be sold, pledged or transferred in accordance with the Applicable Procedures and only (i) to the Company, (ii) in an offshore transaction in accordance with Regulation S or (iii) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any State of the United States.

(e) Legend.

(i) Except as permitted by the following paragraphs (ii), (iii) and (iv), each Security certificate evidencing the Global Securities (and all Securities issued in exchange therefor or in substitution thereof), in the case of Securities offered other than in reliance on Regulation S, shall bear a legend in substantially the following form (together with the legend in the second paragraph of this Section 2.3(e)(i), the “ Restricted Securities Legend ”):

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.

THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER

 

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WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.

Each certificate evidencing a Security offered in reliance on Regulation S shall bear a legend in substantially the following form:

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.

Each Definitive Security shall also bear the following additional legend:

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

(ii) Upon any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Global Security) pursuant to Rule 144 under the Securities Act, the Security Registrar shall permit the transferee thereof to exchange such Transfer Restricted Security for a Definitive Security that does not bear the legend set forth above and rescind any restriction on the transfer of such Transfer Restricted Security, if the transferor thereof certifies in writing to the Security Registrar that such sale or transfer was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Security); and to the extent permitted by law at any time after one year has elapsed following the Issue Date, if the Securities are freely tradeable without restriction pursuant to Rule 144 under the Securities Act (or successor rule), the Security Registrar shall permit the removal of the Restricted Securities Legend and rescind any restriction on the transfer of such Transfer Restricted Security if the Company delivers to the Trustee an opinion reasonably satisfactory to the Trustee that the removal of the Restricted Securities Legend is in compliance with the Securities Act.

(iii) After a transfer of any Initial Securities or Private Exchange Securities pursuant to and during the period of the effectiveness of a Shelf Registration Statement with respect to such Initial Securities or Private Exchange Securities, as the case may be, all requirements pertaining to legends on such Initial Security or such Private Exchange

 

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Security will cease to apply and a certificated Initial Security or Private Exchange Security or an Initial Security or Private Exchange Security in global form, in each case without restrictive transfer legends, will be available to the transferee of the Holder of such Initial Securities or Private Exchange Securities upon exchange of such transferring Holder’s certificated Initial Security or Private Exchange Security or directions to transfer such Holder’s interest in the Global Security, as applicable.

(iv) Upon the consummation of a Registered Exchange Offer with respect to the Initial Securities, all requirements pertaining to such Initial Securities that Initial Securities issued to certain Holders be issued in global form will still apply with respect to Holders of such Initial Securities that do not exchange their Initial Securities, and Exchange Securities in certificated or global form, in each case without the restricted securities legend set forth in Exhibit 1 hereto will be available to Holders that exchange such Initial Securities in such Registered Exchange Offer.

(v) Upon the consummation of a Private Exchange with respect to the Initial Securities, all requirements pertaining to such Initial Securities that Initial Securities issued to certain Holders be issued in global form will still apply with respect to Holders of such Initial Securities that do not exchange their Initial Securities, and Private Exchange Securities in global form with the global securities legend and the applicable restricted securities legend set forth in Exhibit 1 hereto will be available to Holders that exchange such Initial Securities in such Private Exchange.

(f) Cancellation or Adjustment of Global Security. At such time as all beneficial interests in a Global Security have either been exchanged for Definitive Securities, redeemed, purchased or canceled, such Global Security shall be returned to the Depository for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for Definitive Securities, redeemed, purchased or canceled, the principal amount of Securities represented by such Global Security shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Securities Custodian for such Global Security) with respect to such Global Security, by the Trustee or the Securities Custodian, to reflect such reduction.

(g) No Obligation of the Trustee.

(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depository or other Person with respect to the accuracy of the records of the Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depository) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities shall be given or made only to or upon the order of the registered Holders (which shall be the Depository or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depository subject to the applicable rules and procedures of the Depository. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its members, participants and any beneficial owners.

 

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(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depository participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

2.4 Definitive Securities.

(a) A Global Security deposited with the Depository or with the Trustee as Securities Custodian for the Depository pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the form of Definitive Securities in an aggregate principal amount equal to the principal amount of such Global Security, in exchange for such Global Security, only if such transfer complies with Section 2.3 hereof and (i) the Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a “clearing agency” registered under the Exchange Act, in either case, and a successor depository is not appointed by the Company within 90 days of such notice, (ii) a Default with respect to the Securities has occurred and is continuing and DTC or the Company specifically requests such exchange, (iii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of Definitive Securities under the Indenture or (iv) upon prior written notice given to the Trustee by or on behalf of the Depository in accordance with the Indenture.

(b) Any Global Security that is transferable to the beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by the Depository to the Trustee located at its principal corporate trust office in the Borough of Manhattan, The City of New York, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Security, an equal aggregate principal amount of Definitive Securities of authorized denominations. Any portion of a Global Security transferred pursuant to this Section 2.4 shall be executed, authenticated and delivered only in minimum denominations of $2,000 principal amount and any integral multiple of $1,000 in excess thereof and registered in such names as the Depository shall direct. Any Definitive Security delivered in exchange for an interest in a Transfer Restricted Security shall, except as otherwise provided by Section 2.3(e) hereof, bear the applicable restricted securities legend and definitive securities legend set forth in Exhibit 1 hereto unless that legend is not required by applicable law.

(c) Subject to the provisions of Section 2.4(b) hereof, the registered Holder of a Global Security shall be entitled to grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Securities.

 

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(d) In the event of the occurrence of one of the events specified in Section 2.4(a) hereof, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Securities in definitive, fully registered form without interest coupons.

 

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APPENDIX

EXHIBIT 1

[FORM OF FACE OF INITIAL SECURITY]

[Global Securities Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Securities Legend for Securities offered otherwise than in Reliance on Regulation S]

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.

THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR

 

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OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.

[Restricted Securities Legend for Securities Offered in Reliance on Regulation S.]

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.

[Definitive Securities Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

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ARISTOTLE HOLDING, INC.

2.650% SENIOR NOTE DUE 2017

 

No.                     

  Principal Amount (US)$        

CUSIP NO.                     

 

ISIN NO.                     

 

Aristotle Holding, Inc., a corporation organized and existing under the laws of the State of Delaware (herein called the “ Company ”, which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum                      of United States Dollars (U.S.$         ) on February 15, 2017 and to pay interest thereon, from February 9, 2012, or from the most recent Interest Payment Date to which interest has been paid or duly provided for to but excluding the next Interest Payment Date, which shall be February 15 and August 15 of each year, commencing August 15, 2012, at the per annum rate of 2.650%, or as such rate may be adjusted pursuant to the terms hereof (the “ Security Interest Rate ”), until the principal hereof is paid or made available for payment.

The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest, which shall be the day that is 15 days prior to the relevant Interest Payment Date (whether or not a Business Day). Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Securities not less than 10 days prior to the Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any automated quotation system or securities exchange on which the Securities may be quoted or listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will pay interest on overdue principal at the rate borne by this Security, and it will pay interest on overdue installments of interest at the same rate to the extent lawful.

Subject to the provisions of the Registration Rights Agreement, if a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Security from and including the date on which such Registration Default occurs to but excluding the date on which all such Registration Defaults have been cured or the Securities cease to be Transfer Restricted Securities (as defined in the Registration Rights Agreement), whichever is earlier, at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default, and such rate will increase by 0.25% per annum on the 91st day following the occurrence of such Registration Default (provided that the maximum additional interest rate during the initial 90-day period shall be 0.25% per annum and the maximum additional interest rate thereafter shall be 0.50% per annum, in each case regardless of the number of Registration Defaults that have occurred and are continuing). The Company will pay such additional interest on regular Interest Payment Dates.

 

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The Place of Payment for this Security will be the corporate trust office of the Trustee at 625 Marquette Avenue, 11th Floor, Minneapolis, Minnesota 55479, or as otherwise provided in the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a Definitive Security (including principal, premium and interest) by mailing a check to the registered address of each Holder thereof as such address appears on the Security Register; provided , however , that payments on a Definitive Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

4


IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

ARISTOTLE HOLDING, INC.
By:  

 

Name:
Title:

 

Attest:
By:  

 

Name:
Title:

 

5


CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated referred to in the within-mentioned Indenture.

 

Dated:

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee

By:  

 

  Authorized Signatory

 

6


[FORM OF REVERSE OF SECURITY]

(1) Indenture . This Security is one of a duly authorized issue of securities of the Company designated as its “ 2.650% Senior Notes due 2017 ” (herein called the “ Securities ”), issued under a Sixth Supplemental Indenture, dated as of February 9, 2012, to an indenture, dated as of November 21, 2011 (as it may be amended or supplemented from time to time in accordance with the terms thereof and herein with the Sixth Supplemental Indenture, collectively, the “ Indenture ”), between the Company, the Guarantors and Wells Fargo Bank, National Association, as Trustee (herein called the “ Trustee ,” which term includes any successor trustee under the Indenture), to which reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The aggregate principal amount of Initial Securities Outstanding at any time may not exceed $1,500,000,000 in aggregate principal amount, except for Securities issued, authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of the Base Indenture and except for any Securities which, pursuant to Section 3.3 of the Base Indenture, are deemed never to have been authenticated and delivered. The Sixth Supplemental Indenture pursuant to which this Security is issued provides that Additional Securities may be issued thereunder, if certain conditions are met. The Initial Securities issued pursuant to the Sixth Supplemental Indenture and all Exchange Securities or Private Exchange Securities issued in exchange therefor will be treated as a single class for all purposes under the Indenture.

The Indenture contains covenants that limit the ability of the Company and any Restricted Subsidiary to create liens on assets and to engage in sale/leaseback transactions. The Indenture also contains covenants that limit the ability of the Company and, prior to the consummation of the Mergers, of Express Scripts to consolidate, merge or transfer all or substantially all of their respective assets. These covenants are subject to important exceptions and qualifications.

All terms used in this Security which are defined in the Indenture (including in the Appendix thereto) shall have the meanings assigned to them in the Indenture. In the event of a conflict or inconsistency between this Security and the Indenture, the provisions of the Indenture shall govern.

(2) Optional Redemption . At any time prior to Maturity, the Company may at its option redeem all or a part of the Securities upon not more than 60 nor less than 30 days prior notice, at a Redemption Price equal to the greater of: (i) 100% of the aggregate principal amount of any Securities being redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date; or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities to be redeemed (exclusive of unpaid interest accrued thereon to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year comprised of twelve 30-day months) at the Treasury Rate plus 35 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.

 

7


(3) Mandatory Redemption . Except as provided in Sections 4 and 5 below, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.

(4) Special Mandatory Redemption . If for any reason (i) the Mergers are not consummated on or prior to the Special Mandatory Redemption Triggering Date or (ii) the Merger Agreement is terminated at any time prior thereto, then the Company shall redeem all the Securities on the Special Mandatory Redemption Date at a price equal to 101% of the aggregate accreted principal amount of such Security, plus accrued and unpaid interest from the date of original issuance to, but excluding, the Special Mandatory Redemption Date (subject to the right of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).

(5) Change of Control Triggering Event . In the event of a Change of Control Triggering Event, the Holders may require the Company to purchase for cash all or a portion of their Securities at a purchase price equal to 101% of the aggregate principal amount of the Securities repurchased, plus accrued and unpaid interest, if any, pursuant to the provisions of Section 10.10 of the Base Indenture.

(6) Registration Rights. The Company is party to a Registration Rights Agreement, dated as of February 9, 2012, among the Company, the Guarantors and the representatives of the Initial Purchasers named therein, pursuant to which it is obligated to pay additional interest on the Securities upon the occurrence of certain events specified in the Registration Rights Agreement.

(7) Global Security . If this Security is a Global Security, then the transfer and exchange of this Security or beneficial interests herein shall be effected through the Depository in accordance with the Indenture (including applicable restrictions on transfer set forth therein, if any) and the procedures of the Depository therefor. The Security Registrar shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the Depository’s Procedures.

(8) Defaults and Remedies . If an Event of Default with respect to this Security occurs and is continuing, the principal of and any unpaid premium and interest on (or, if this Security is an Original Issue Discount Security, such portion of the principal amount of such Securities as may be specified in the terms thereof) all outstanding securities of this series, may be declared due and payable in the manner and with the effect provided in the Indenture. The Holders of at least a majority in principal amount of the Outstanding Securities may rescind or annul that acceleration if all Events of Default with respect to the Securities other than the non-payment of accelerated principal have been cured or waived as provided in the Indenture.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default, and, among other things, the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities shall have made a written request to the Trustee to pursue a remedy in

 

8


respect of such Event of Default as Trustee. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any amounts due on the Securities on or after the respective due dates expressed herein.

(9) Discharge and Defeasance . Subject to certain conditions, the Company at any time shall be entitled to terminate some or all of the Company’s and the Guarantors’ obligations under the Securities, the Guarantees and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be.

(10) Amendment, Supplement and Waiver . The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities. The provisions relating to the Special Mandatory Redemption set forth in Sections 4.2 and 4.3 of the Sixth Supplemental Indenture may not be modified or waived without the written consent of 66 2/3% in aggregate principal amount of the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Outstanding Securities, on behalf of the Holders of all such Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security or such other Security. Certain modifications or amendments to the Indenture require the consent of the Holder of each Outstanding Security affected.

Notwithstanding any other provision of the Indenture or this Security, the Holder of this Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.7 of the Base Indenture) interest on any such Security on the Stated Maturity date expressed herein (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

(11) Denomination, Registration and Transfer . The Securities are in registered form without coupons in minimum denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this Security is transferable only upon surrender of this Security for registration of transfer. Upon surrender for registration of transfer of this Security at the office or agency of the Company in a Place of Payment for this Security, the Company, if the requirements of the Indenture are met, shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of authorized denominations and of like tenor and aggregate principal amount, and having endorsed thereon a Guarantee executed by the Guarantors.

 

9


If the requirements of this Indenture are met, then, at the option of the Holder, Securities may be exchanged for other Securities, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, and having endorsed thereon a Guarantee executed by the Guarantor. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee may treat the Person in whose name such Security is registered as the owner thereof for all purposes, whether or not such Security be overdue, and none of the Company, the Guarantors or the Trustee or other such agent shall be affected by notice to the contrary.

(12) Guarantee . Payment of this Security is jointly and severally and fully and unconditionally guaranteed by the Guarantors that have become and continue to be Guarantors pursuant to the Indenture. Guarantors may be released from their obligations under the Indenture and their Guarantees under the circumstances specified under the Indenture.

(13) No Recourse Against Others. None of the Company’s or any Guarantor’s past, present or future directors, officers, employees or shareholders, as such, shall have any liability for any of the Company’s or any Guarantor’s obligations under the Indenture or the Securities or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a Security, each Holder waives and releases all such liability. This waiver and release is part of the consideration for the issuance of the Securities.

(14) Holders’ Compliance with Registration Rights Agreement. Each Holder, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement in respect of this Security, including the obligations of the Holders with respect to a registration and the indemnification of the Company to the extent provided therein.

(15) Governing Law . THE INDENTURE, THIS SECURITY AND ANY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge to the Securityholder a copy of the Indenture which has in it the text of this Security in larger type. Requests may be made to:

Aristotle Holding, Inc.

One Express Scripts Way

St. Louis, Missouri 63121

 

10


ABBREVIATIONS

The following abbreviations, when used in the inscription of the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM (= tenant in common)

TEN ENT (= tenants by the entireties (Cust))

JT TEN (= joint tenants with right of survivorship and not as tenants in common)

UNIF GIFT MIN ACT (= under Uniform Gifts to Minors Act )

Additional abbreviations may also be used though not in the above list.

 

11


 

ASSIGNMENT FORM

To assign this Security, fill in the form below:

I or we assign and transfer this Security to

(Print or type assignee’s name, address and zip code)

(Insert assignee’s soc. sec. or tax I.D. No.)

and irrevocably appoint                      agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.

 

 

Date:                         Your Signature:   

 

 

Sign exactly as your name appears on the other side of this Security.

In connection with any transfer of any of the Securities evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act after the later of the date of original issuance of such Securities and the last date, if any, on which such Securities were owned by the Company or any Affiliate of the Company, the undersigned confirms that such Securities are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

(1)    ¨    pursuant to an effective registration statement under the Securities Act; or
(2)    ¨    in the United States to a person whom the seller reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) in a transaction meeting the requirements of Rule 144A; or
(3)    ¨    outside the United States in an offshore transaction in accordance with Rule 904 under the Securities Act in compliance with Rule 904 under the Securities Act of 1933, as amended; or
(4)    ¨    pursuant to the exemption from registration under the Securities Act provided by Rule 144.
Unless one of the boxes is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered

 

12


holder thereof; provided , however , that if box (4) is checked, the Trustee shall be entitled to require, prior to registering any such transfer of the Securities, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, as amended.

 

    Signature
Signature Guarantee:    
  Signature must be guaranteed   Signature

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

 

 

13


TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:                            

 

    Notice:   

To be executed by

an executive officer

 

14


[TO BE ATTACHED TO GLOBAL SECURITIES]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

The following increases or decreases in this Global Security have been made:

 

Date of Exchange    Amount of decrease in
Principal amount of this
Global Security
   Amount of increase in
Principal amount of this
Global Security
   Principal amount of this
Global Security following
such decrease or increase
   Signature of authorized
signatory of Trustee or
Securities Custodian
           
           
           
           
           

 

15


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Security purchased by the Company pursuant to Section 10.10 of the Indenture, check the box:   ¨

¨ If you want to elect to have only part of this Security purchased by the Company pursuant to Section 10.10 of the Indenture, state the amount in principal amount: $            .

 

Dated:      Your Signature:   

 

    

(Sign exactly as your name appears on the
other side of this Security.)

 

Signature Guarantee:  

 

(Signature must be guaranteed)

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

16


EXHIBIT 2

[FORM OF FACE OF EXCHANGE SECURITY

OR PRIVATE EXCHANGE SECURITY] * / ** /

 

*/ If the Security is to be issued in global form add the Global Securities Legend from Exhibit 1 to the Appendix and the attachment from such Exhibit 1 captioned “[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY.”
**/ If the Security is a Private Exchange Security issued in a Private Exchange to an Initial Purchaser holding an unsold portion of its initial allotment, add the Restricted Securities Legend from Exhibit 1 to the Appendix and replace the Assignment Form included in this Exhibit 2 with the Assignment Form included in such Exhibit 1.


ARISTOTLE HOLDING, INC.

2.650% SENIOR NOTE DUE 2017

 

No.                       Principal Amount (US)$        
CUSIP NO.                      
ISIN NO.                      

Aristotle Holding, Inc., a corporation organized and existing under the laws of the State of Delaware (herein called the “ Company ”, which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of                      United States Dollars (U.S.$         ) on February 15, 2017 and to pay interest thereon, from February 9, 2012, or from the most recent Interest Payment Date to which interest has been paid or duly provided for to but excluding the next Interest Payment Date, which shall be February 15 and August 15 of each year, commencing August 15, 2012, at the per annum rate of 2.650%, or as such rate may be adjusted pursuant to the terms hereof (the “ Security Interest Rate ”), until the principal hereof is paid or made available for payment.

The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest, which shall be the day that is 15 days prior to the relevant Interest Payment Date (whether or not a Business Day). Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Securities not less than 10 days prior to the Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any automated quotation system or securities exchange on which the Securities may be quoted or listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will pay interest on overdue principal at the rate borne by this Security, and it will pay interest on overdue installments of interest at the same rate to the extent lawful.

The Place of Payment for this Security will be the corporate trust office of the Trustee at 625 Marquette Avenue, 11th Floor, Minneapolis, Minnesota 55479, or as otherwise provided in the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a Definitive Security (including principal, premium and interest) by mailing a check to the registered address of each Holder thereof as such address appears on the Security Register; provided , however , that payments on a Definitive Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire

 

2


transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

3


IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

ARISTOTLE HOLDING, INC.
By:  

 

Name:
Title:

 

Attest:
By:  

 

Name:
Title:

 

4


CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated referred to in the within-mentioned Indenture.

Dated:

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee

By:  

 

  Authorized Signatory

 

5


[FORM OF REVERSE OF SECURITY]

(1) Indenture . This Security is one of a duly authorized issue of securities of the Company designated as its “ 2.650% Senior Notes due 2017 ” (herein called the “ Securities ”), issued under a Sixth Supplemental Indenture, dated as of February 9, 2012, to an indenture, dated as of November 21, 2011 (as it may be amended or supplemented from time to time in accordance with the terms thereof and herein with the Sixth Supplemental Indenture, collectively, the “ Indenture ”), between the Company, the Guarantors and Wells Fargo Bank, National Association, as Trustee (herein called the “ Trustee ,” which term includes any successor trustee under the Indenture), to which reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The aggregate principal amount of Initial Securities Outstanding at any time may not exceed $1,500,000,000 in aggregate principal amount, except for Securities issued, authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of the Base Indenture and except for any Securities which, pursuant to Section 3.3 of the Base Indenture, are deemed never to have been authenticated and delivered. The Sixth Supplemental Indenture pursuant to which this Security is issued provides that Additional Securities may be issued thereunder, if certain conditions are met. The Initial Securities issued pursuant to the Sixth Supplemental Indenture and all Exchange Securities or Private Exchange Securities issued in exchange therefor will be treated as a single class for all purposes under the Indenture.

The Indenture contains covenants that limit the ability of the Company and any Restricted Subsidiary to create liens on assets and to engage in sale/leaseback transactions. The Indenture also contains covenants that limit the ability of the Company and, prior to the consummation of the Mergers, of Express Scripts to consolidate, merge or transfer all or substantially all of their respective assets. These covenants are subject to important exceptions and qualifications.

All terms used in this Security which are defined in the Indenture (including in the Appendix thereto) shall have the meanings assigned to them in the Indenture. In the event of a conflict or inconsistency between this Security and the Indenture, the provisions of the Indenture shall govern.

(2) Optional Redemption . At any time prior to Maturity, the Company may at its option redeem all or a part of the Securities upon not more than 60 nor less than 30 days prior notice, at a Redemption Price equal to the greater of: (i) 100% of the aggregate principal amount of any Securities being redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date; or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities to be redeemed (exclusive of unpaid interest accrued thereon to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year comprised of twelve 30-day months) at the Treasury Rate plus 35 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.

 

6


(3) Mandatory Redemption . Except as provided in Sections 4 and 5 below, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.

(4) Special Mandatory Redemption . If for any reason (i) the Mergers are not consummated on or prior to the Special Mandatory Redemption Triggering Date or (ii) the Merger Agreement is terminated at any time prior thereto, then the Company shall redeem all the Securities on the Special Mandatory Redemption Date at a price equal to 101% of the aggregate accreted principal amount of such Security, plus accrued and unpaid interest from the date of original issuance to, but excluding, the Special Mandatory Redemption Date (subject to the right of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).

(5) Change of Control Triggering Event . In the event of a Change of Control Triggering Event, the Holders may require the Company to purchase for cash all or a portion of their Securities at a purchase price equal to 101% of the aggregate principal amount of the Securities repurchased, plus accrued and unpaid interest, if any, pursuant to the provisions of Section 10.10 of the Base Indenture.

(6) Global Security . If this Security is a Global Security, then the transfer and exchange of this Security or beneficial interests herein shall be effected through the Depository in accordance with the Indenture (including applicable restrictions on transfer set forth therein, if any) and the procedures of the Depository therefor. The Security Registrar shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the Depository’s Procedures.

(7) Defaults and Remedies . If an Event of Default with respect to this Security occurs and is continuing, the principal of and any unpaid premium and interest on (or, if this Security is an Original Issue Discount Security, such portion of the principal amount of such Securities as may be specified in the terms thereof) all outstanding securities of this series, may be declared due and payable in the manner and with the effect provided in the Indenture. The Holders of at least a majority in principal amount of the Outstanding Securities may rescind or annul that acceleration if all Events of Default with respect to the Securities other than the non-payment of accelerated principal have been cured or waived as provided in the Indenture.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default, and, among other things, the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities shall have made a written request to the Trustee to pursue a remedy in respect of such Event of Default as Trustee. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any amounts due on the Securities on or after the respective due dates expressed herein.

(8) Discharge and Defeasance . Subject to certain conditions, the Company at any time shall be entitled to terminate some or all of the Company’s and the Guarantors’

 

7


obligations under the Securities, the Guarantees and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be.

(9) Amendment, Supplement and Waiver . The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities. The provisions relating to the Special Mandatory Redemption set forth in Sections 4.2 and 4.3 of the Sixth Supplemental Indenture may not be modified or waived without the written consent of 66 2/3% in aggregate principal amount of the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Outstanding Securities, on behalf of the Holders of all such Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security or such other Security. Certain modifications or amendments to the Indenture require the consent of the Holder of each Outstanding Security affected.

Notwithstanding any other provision of the Indenture or this Security, the Holder of this Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.7 of the Base Indenture) interest on any such Security on the Stated Maturity date expressed herein (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

(10) Denomination, Registration and Transfer . The Securities are in registered form without coupons in minimum denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this Security is transferable only upon surrender of this Security for registration of transfer. Upon surrender for registration of transfer of this Security at the office or agency of the Company in a Place of Payment for this Security, the Company, if the requirements of the Indenture are met, shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of authorized denominations and of like tenor and aggregate principal amount, and having endorsed thereon a Guarantee executed by the Guarantors.

If the requirements of this Indenture are met, then, at the option of the Holder, Securities may be exchanged for other Securities, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, and having endorsed thereon a Guarantee executed by the Guarantor. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

8


Prior to due presentment of this Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee may treat the Person in whose name such Security is registered as the owner thereof for all purposes, whether or not such Security be overdue, and none of the Company, the Guarantors or the Trustee or other such agent shall be affected by notice to the contrary.

(11) Guarantee . Payment of this Security is jointly and severally and fully and unconditionally guaranteed by the Guarantors that have become and continue to be Guarantors pursuant to the Indenture. Guarantors may be released from their obligations under the Indenture and their Guarantees under the circumstances specified under the Indenture.

(12) No Recourse Against Others. None of the Company’s or any Guarantor’s past, present or future directors, officers, employees or shareholders, as such, shall have any liability for any of the Company’s or any Guarantor’s obligations under the Indenture or the Securities or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a Security, each Holder waives and releases all such liability. This waiver and release is part of the consideration for the issuance of the Securities.

(13) [Holders’ Compliance with Registration Rights Agreement. Each Holder, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement in respect of this Security, including the obligations of the Holders with respect to a registration and the indemnification of the Company to the extent provided therein.] 1

(14) Governing Law . THE INDENTURE, THIS SECURITY AND ANY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge to the Securityholder a copy of the Indenture which has in it the text of this Security in larger type. Requests may be made to:

Aristotle Holding, Inc.

One Express Scripts Way

St. Louis, Missouri 63121

ABBREVIATIONS

The following abbreviations, when used in the inscription of the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations:

 

1  

Delete if this is not a Private Exchange Security.

 

9


TEN COM (= tenant in common)

TEN ENT (= tenants by the entireties (Cust))

JT TEN (= joint tenants with right of survivorship and not as tenants in common)

UNIF GIFT MIN ACT (= under Uniform Gifts to Minors Act )

Additional abbreviations may also be used though not in the above list.

 

10


ASSIGNMENT FORM

To assign this Security, fill in the form below:

I or we assign and transfer this Security to

(Print or type assignee’s name, address and zip code)

(Insert assignee’s soc. sec. or tax I.D. No.)

and irrevocably appoint                      agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.

 

 

Date:                         Your Signature:   

 

 

Sign exactly as your name appears on the other side of this Security.

 

11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Security purchased by the Company pursuant to Section 10.10 of the Indenture, check the box:   ¨

¨ If you want to elect to have only part of this Security purchased by the Company pursuant to Section 10.10 of the Indenture, state the amount in principal amount: $            .

 

Dated:      Your Signature:   

 

    

(Sign exactly as your name appears on the
other side of this Security.)

 

Signature Guarantee:  

 

(Signature must be guaranteed)

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

12


EXHIBIT 3

FORM OF GUARANTEE

For value received, each of the Guarantors (which term includes any successor Person under the Indenture) has jointly and severally and fully and unconditionally guaranteed, to the extent set forth in the Indenture, among the Company, the Guarantors and the Trustee and subject to the provisions in the Indenture, (a) the due and punctual payment in full when due of the principal of, premium, if any, and interest on the Securities and all other amounts due and payable under the Indenture and the Securities by the Company and (b) in case of any extension of time of payment or renewal of any Obligations (with or without notice to the Guarantor), that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article XIII of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee, including provisions for the release thereof. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.

 

[NAME OF GUARANTOR(S)]
By:  

 

Name:  

 

Title:  

 

Exhibit 4.3

EXECUTION COPY

 

 

 

SEVENTH SUPPLEMENTAL INDENTURE

Dated as of February 9, 2012

Supplementing that Certain

INDENTURE

Dated as of November 21, 2011

 

 

Among

ARISTOTLE HOLDING, INC.,

THE GUARANTORS PARTY HERETO

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee

 

 

3.900% SENIOR NOTES DUE 2022

 

 

 


This Seventh Supplemental Indenture, dated as of February 9, 2012 (the “ Seventh Supplemental Indenture ”), among Aristotle Holding, Inc., a corporation organized and existing under the laws of the State of Delaware, having its principal office at One Express Way, St. Louis, Missouri (herein called the “ Company ”), the Guarantors party hereto and Wells Fargo Bank, National Association, a national banking association, as Trustee hereunder (herein called the “ Trustee ”), supplements that certain Indenture, dated as of November 21, 2011, among the Company, the Guarantors and the Trustee (the “ Base Indenture ” and, together with this Seventh Supplemental Indenture, the “ Indenture ”).

RECITALS OF THE COMPANY

A. The Company, the Guarantors and the Trustee have entered into the Base Indenture, which provides for the issuance from time to time of the Company’s unsecured debentures, notes, or other evidences of indebtedness to be issued in one or more series as provided for in the Base Indenture.

B. The Base Indenture provides that the Securities of each series shall be in substantially the form set forth in the Base Indenture, or in such other form as may be established by or pursuant to a Board Resolution and set forth in an Officers’ Certificate or in one or more supplemental indentures thereto, in each case with such appropriate insertions, omissions, substitutions, and other variations as are required or permitted by the Indenture, and may have notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent therewith, be determined by the officers executing such Securities, as evidenced by their execution thereof.

C. The Company and the Trustee have agreed that the Company shall issue and deliver, and the Trustee shall authenticate, a new series of Securities to be known as the “3.900% Senior Notes due 2022” pursuant to the terms of this Seventh Supplemental Indenture and substantially in the form set forth in Appendix A hereto (together with the Exhibits thereto, the “ Appendix ”), in each case with such appropriate insertions, omissions, substitutions, and other variations as are required or permitted by the Indenture, and with such notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent herewith, be determined by the officers executing such Securities, as evidenced by their execution of such Securities.


ARTICLE I

Issuance of Securities

SECTION 1.1. Issuance of Securities; Principal Amount; Maturity; Title.

(1) On February 9, 2012, the Company shall issue and deliver to the Trustee, and the Trustee shall authenticate, the Initial Securities substantially in the form set forth in the Appendix, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and with such notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent herewith, be determined by the officers executing such Securities, as evidenced by their execution of such Securities.

(2) Pursuant to the terms hereof and Section 3.1 of the Base Indenture, the Company hereby creates a series of Securities designated as the “3.900% Senior Notes due 2022” of the Company (including both the Initial Securities and any Additional Securities (as defined below), the “ Securities ”), which Securities shall be deemed “Securities” for all purposes under the Indenture.

(3) The Initial Securities to be issued pursuant to this Seventh Supplemental Indenture shall be issued in the aggregate principal amount of $1,000,000,000 and shall mature on February 15, 2022 unless the Securities are redeemed prior to that date as described in Sections 4.1 or 4.2 of this Seventh Supplemental Indenture. The aggregate principal amount of Initial Securities Outstanding at any time may not exceed $1,000,000,000, except for Securities issued, authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of the Base Indenture and except for any Securities which, pursuant to Section 3.3 of the Base Indenture, are deemed never to have been authenticated and delivered; provided that the Company may without the consent of the Holders, issue additional Securities hereunder as part of the same series and on the same terms and conditions (except for the issue date, issue price and, in some cases, the first Interest Payment Date) (and having the same Guarantors) as the Initial Securities (“ Additional Securities ”).

(4) The Securities shall be issued only in fully registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000.

SECTION 1.2. Interest.

(1) Interest on a Security will accrue at the per annum rate of 3.900% (the “ Security Interest Rate ”), from and including the date specified on the face of such Security until the principal thereof is paid, deemed paid, or made available for payment and, in each case, will be paid on the basis of a 360-day year comprised of twelve 30-day months.


(2) The Company shall pay interest on the Securities semi-annually in arrears on February 15 and August 15 of each year (each, an “ Interest Payment Date ”), commencing August 15, 2012.

(3) Interest shall be paid on each Interest Payment Date to the registered Holders of the Securities after the close of business on the Regular Record Date.

(4) The Place of Payment for this Security shall be the corporate trust office of the Trustee at 625 Marquette Avenue, 11th Floor, Minneapolis, Minnesota 55479. Notwithstanding the foregoing, (i) payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository and (ii) the Company will make all payments in respect of a Definitive Security (including principal, premium and interest) by mailing a check to the registered address of each Holder thereof as such address appears in the Security Register; provided , however , that payments on a Definitive Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

(5) Neither the Company nor the Trustee shall impose any service charge for any transfer or exchange of a Security. However, the Company may ask Holders of the Securities to pay any taxes or other governmental charges in connection with a transfer or exchange of Securities.

(6) If any Interest Payment Date, Maturity Date or Redemption Date falls on a day that is not a Business Day in the City of New York, the Company will make the required payment of principal, premium, if any, and/or interest on the next succeeding Business Day as if it were made on the date payment was due, and no interest will accrue on the amount so payable for the period from and after that Interest Payment Date, the Maturity Date or earlier Redemption Date, as the case may be, to such next succeeding Business Day.

SECTION 1.3. Additional Interest.

The Company is party to a Registration Rights Agreement, dated as of February 9, 2012, among the Company, the Guarantors and the representatives of the Initial Purchasers named therein, pursuant to which it is obligated to pay additional interest on the Securities upon the occurrence of certain events specified in the Registration Rights Agreement.

Subject to the provisions of the Registration Rights Agreement, if a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Security from and including the date on which such Registration Default occurs to but excluding the date on which all such Registration


Defaults have been cured or the Securities cease to be Transfer Restricted Securities (as defined in the Registration Rights Agreement), whichever is earlier, at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default, and such rate will increase by 0.25% per annum on the 91st day following the occurrence of such Registration Default (provided that the maximum additional interest rate during the initial 90-day period shall be 0.25% per annum and the maximum additional interest rate thereafter shall be 0.50% per annum, in each case regardless of the number of Registration Defaults that have occurred and are continuing). The Company will pay such additional interest on regular Interest Payment Dates.

SECTION 1.4. Relationship with Base Indenture.

The terms and provisions contained in the Base Indenture will constitute, and are hereby expressly made, a part of this Seventh Supplemental Indenture. However, to the extent any provision of the Base Indenture conflicts with the express provisions of this Seventh Supplemental Indenture, the provisions of this Seventh Supplemental Indenture will govern and be controlling; provided , however , that the forms and provisions of this Seventh Supplemental Indenture modify and amend the terms of the Base Indenture only with respect to the Securities.

ARTICLE II

Definitions and Other Provisions of General Application

SECTION 2.1. Definitions.

The terms defined in this Section 2.1 (except as herein otherwise expressly provided or unless the context of this Seventh Supplemental Indenture otherwise requires) for all purposes of this Seventh Supplemental Indenture and of any indenture supplemental hereto have the respective meanings specified in this Section 2.1. All other terms used in this Seventh Supplemental Indenture that are defined in the Base Indenture or the Trust Indenture Act, either directly or by reference therein (except as herein otherwise expressly provided or unless the context of this Seventh Supplemental Indenture otherwise requires), have the respective meanings assigned to such terms in the Base Indenture or the Trust Indenture Act, as the case may be, as in force at the date of this Seventh Supplemental Indenture as originally executed; provided that any term that is defined in both the Base Indenture and this Seventh Supplemental Indenture shall have the meaning assigned to such term in this Seventh Supplemental Indenture.

Additional Securities ” has the meaning specified in Section 1.1(3).

Appendix ” has the meaning specified in the recitals to this Seventh Supplemental Indenture.

Comparable Treasury Issue ” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of the Securities.


Comparable Treasury Price ” means with respect to any Redemption Date: (i) the average of five Reference Treasury Dealer Quotations for the Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than five Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations for the Redemption Date so obtained.

Definitive Security ” has the meaning specified in Section 1.1 of the Appendix.

Exchange Securities ” has the meaning specified in Section 1.1 of the Appendix.

Independent Investment Banker ” means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.

Initial Purchaser ” has the meaning specified in Section 1.1 of the Appendix.

Initial Securities ” means Securities in an aggregate principal amount of up to $1,000,000,000 initially issued under this Seventh Supplemental Indenture in accordance with Section 1.1(3).

Interest Payment Date ” has the meaning specified in Section 1.2(2).

Maturity Date ” means February 15, 2022.

Mergers ” means the merger of Aristotle Merger Sub, Inc., a Delaware corporation and Wholly Owned Subsidiary of the Company, with and into Express Scripts, and the merger of Plato Merger Sub, Inc., a Delaware corporation and Wholly Owned Subsidiary of the Company, with and into Medco pursuant to the Merger Agreement.

Private Exchange Securities ” has the meaning specified in Section 1.1 of the Appendix.

Reference Treasury Dealer ” means each of Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC (in each case, or their Affiliates) and three other primary United States government securities dealers selected by the Company, and each of their respective successors; provided that if any of the aforementioned Reference Treasury Dealers resigns, then the respective successor will be a primary United States government securities dealer in The City of New York selected by the Company.

Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the


Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at approximately 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.

Registration Rights Agreement ” has the meaning set forth in Section 1.1 of the Appendix.

Regular Record Date ” for interest payable in respect of any Security on any Interest Payment Date means the day that is 15 days prior to the relevant Interest Payment Date (whether or not a Business Day).

Security Interest Rate ” has the meaning specified in Section 1.2(1).

Securities ” has the meaning specified in Section 1.1(2).

Special Mandatory Redemption Date ” means the earlier to occur of (i) the 20th day (or if such day is not a Business Day, the first Business Day thereafter) following the Special Mandatory Redemption Triggering Date, if the Mergers have not been completed on or prior to the Special Mandatory Redemption Triggering Date, or (ii) the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the termination of the Merger Agreement for any reason.

Special Mandatory Redemption Notice ” has the meaning set forth in Section 4.3 hereto.

Special Mandatory Redemption Price ” has the meaning set forth in Section 4.2 hereto.

Special Mandatory Redemption Triggering Date ” means April 20, 2012; provided that such date may be extended by the Company on one or more occasions to a date not later than July 20, 2012, in the event the conditions set forth in Sections 6.1(c), 6.1(e) or 6.2(d) of the Merger Agreement have not been satisfied or waived by the fifth Business Day (as defined in the Merger Agreement) prior to April 20, 2012; provided , further , that such extended date may be further extended by the Company on one or more occasions to a date not later than October 22, 2012, in the event that the conditions set forth in Sections 6.1(c), 6.1(e) or 6.2(d) of the Merger Agreement have not been satisfied or waived by the fifth Business Day (as defined in the Merger Agreement) prior to the initially extended date; provided , however , that, in any case, (x) the Special Mandatory Redemption Triggering Date shall only be extended if and when the Outside Date (as defined in the Merger Agreement) is extended pursuant to Section 7.1(b)(ii) of the Merger Agreement, and the Special Mandatory Redemption Triggering Date, as so extended, shall be the same date as the Outside Date, as so extended, and (y) if the Special Mandatory Redemption Triggering Date is extended in accordance with the foregoing, the term “Special Mandatory Redemption Triggering Date” shall mean such date as so extended.


Treasury Rate ” means, with respect to any Redemption Date, the rate per year equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.

ARTICLE III

Security Forms

SECTION 3.1. Form Generally.

(1) Provisions relating to the Initial Securities, the Exchange Securities and the Private Exchange Securities are set forth in the Appendix, which is hereby incorporated in, and expressly made part of, this Indenture. The Initial Securities and the Trustee’s certificate of authentication with respect thereto shall be substantially in the form of Exhibit 1 to the Appendix. The Exchange Securities and the Private Exchange Securities and the Trustee’s certificate of authentication with respect thereto shall be substantially in the form of Exhibit 2 to the Appendix. The Securities may have notations, legends or endorsements required by law, stock exchange or automated quotation system on which the Securities may be listed, quoted or designated for issuance, agreements to which the Company is subject, if any, or usage or as may, consistent herewith, be determined by the officers executing such Securities (execution thereof to be conclusive evidence of such approval). Each Security shall be in fully registered form and shall be dated the date of its authentication. The terms of the Securities set forth in the Appendix are part of the terms of this Seventh Supplemental Indenture. The Guarantees shall be in substantially the form set forth in Exhibit 3 to the Appendix.

(2) The Securities shall be printed, lithographed, typewritten or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any automated quotation system or securities exchange (including on steel engraved borders if so required by any automated quotation system or securities exchange upon which the Securities may be quoted or listed) on which the Securities may be quoted or listed, as the case may be, all as determined by the officers executing such Securities, as evidenced by their execution thereof.

ARTICLE IV

Redemption of Securities

SECTION 4.1. Optional Redemption.

The Company may, at its option, redeem the Securities, in whole or from time to time in part, prior to the Maturity Date at a Redemption Price equal to the greater of: (i) 100% of the aggregate principal amount of Securities to be redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date; or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the


Securities to be redeemed (exclusive of unpaid interest accrued thereon to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year comprised of twelve 30-day months) at the Treasury Rate plus 40 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.

SECTION 4.2. Special Mandatory Redemption.

If for any reason (i) the Mergers are not consummated on or prior to the Special Mandatory Redemption Triggering Date or (ii) the Merger Agreement is terminated at any time prior thereto, then the Company shall redeem all the Securities on the Special Mandatory Redemption Date at a price equal to 101% of the aggregate accreted principal amount of the Securities, plus accrued and unpaid interest from the date of original issuance to, but excluding, the Special Mandatory Redemption Date (the “ Special Mandatory Redemption Price ”) (subject to the right of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).

SECTION 4.3. Special Mandatory Redemption Procedures.

(1) Notice of redemption pursuant to Section 4.2 (a “ Special Mandatory Redemption Notice ”) shall be mailed, with a written copy to the Trustee, by first class mail, postage prepaid, within 10 Business Days after the occurrence of the event triggering redemption to each Holder of Securities at such Holder’s address as shown in the Security Register. Failure to give notice by mailing in the manner herein provided to such Holder, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities.

All Special Mandatory Redemption Notices shall state:

(i) the Special Mandatory Redemption Date;

(ii) the Special Mandatory Redemption Price;

(iii) that on the Special Mandatory Redemption Date the Special Mandatory Redemption Price will become due and payable with respect to each Security;

(iv) the place or places where such Securities are to be surrendered for payment of the Special Mandatory Redemption Price;

(v) the CUSIP, ISIN or Common Code numbers of such Securities, if any (or any other numbers used by the Depositary to identify such Securities); and

(vi) if funds sufficient to pay the Special Mandatory Redemption Price of all Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Paying Agent on or before such Special Mandatory Redemption Date, that such Securities shall cease to bear interest on and after such Special Mandatory Redemption Date.


(2) Each Special Mandatory Redemption Notice having been given as aforesaid, the Securities shall, on the Special Mandatory Redemption Date, become due and payable at the Special Mandatory Redemption Price therein specified. If funds sufficient to pay the Special Mandatory Redemption Price of all Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Paying Agent on or before such Special Mandatory Redemption Date, the Securities shall cease to bear interest on and after such Special Mandatory Redemption Date (unless the Company shall default on the payment of the Special Mandatory Redemption Price). Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Special Mandatory Redemption Price; provided, however, that installments of interest whose Interest Payment Date is on or prior to the Special Mandatory Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date according to their terms and the provisions of Section 3.7 of the Indenture.

(3) If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof shall, until paid, bear interest from the Special Mandatory Redemption Date at the rate borne by the Security.

ARTICLE V

Remedies

SECTION 5.1. Events of Default.

With respect to the Securities, Section 5.1 of the Base Indenture is hereby amended to add the following as Section 5.1(9):

(i) the Company fails to timely deliver a Special Mandatory Redemption Notice when required.

ARTICLE VI

Reports by Company

SECTION 6.1. Reports by Express Scripts or the Company.

With respect to the Securities, Section 7.4 of the Base Indenture is hereby amended to add the following paragraph to the end of such Section:

In addition, prior to the consummation of the Mergers, Express Scripts and, following the consummation of the Mergers, the Company, shall furnish, at the Company’s expense, to the Holders and prospective Holders, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision) under the Securities Act so long as any Securities are not freely transferable under the Securities Act.


ARTICLE VII

Supplemental Indentures

SECTION 7.1. Supplemental Indentures Without Consent of Holders.

Section 9.1 of the Base Indenture shall not be applicable to the Securities.

Without seeking the consent of any Holders, the Company, together with the Trustee, at any time and from time to time, may modify and amend the Base Indenture, this Seventh Supplemental Indenture and the terms of the Securities to:

(1) allow the Company’s or any Guarantor’s successor (or successive successors) to assume the Company’s or such Guarantor’s obligations under the Base Indenture, this Seventh Supplemental Indenture and the Securities pursuant to the provisions under Article VIII or Section 13.15 of the Base Indenture;

(2) add to the covenants of the Company for the benefit of the Holders of the Securities or to surrender any right or power herein conferred upon the Company under this Seventh Supplemental Indenture, the Base Indenture or the Securities;

(3) add any additional Events of Default;

(4) secure the Securities;

(5) provide for a successor Trustee with respect to the Securities and add to or change any of the provisions of the Base Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11 of the Base Indenture;

(6) add or release a Guarantor as required or permitted by the Indenture;

(7) cure any ambiguity, defect or inconsistency;

(8) amend the provisions of the Base Indenture or this Seventh Supplemental Indenture relating to the transfer or legending of the Securities; provided that (i) compliance with the Base Indenture or this Seventh Supplemental Indenture as so amended would not result in Securities being transferred in violation of the Securities Act or any other applicable securities law and (ii) such amendment does not adversely affect the interests of the Holders of the Securities or owners of beneficial interests in Securities; or

(9) make any other amendment or supplement to the Base Indenture, this Seventh Supplemental Indenture or the Securities, as long as that amendment or supplement does not adversely affect the interests of the Holders of any Securities in any material respect (to be evidenced by an Opinion of Counsel).


No amendment to cure any ambiguity, defect or inconsistency in the Base Indenture, this Seventh Supplemental Indenture or the Securities made solely to conform to the provisions of the Base Indenture, this Seventh Supplemental Indenture or the Securities to any description of the Securities in the offering circular therefor, to the extent that such provision in the offering circular was intended to be a verbatim recitation of a provision of the Base Indenture, this Seventh Supplemental Indenture or the Securities, shall be deemed to adversely affect the interests of the Holders of any Securities.

SECTION 7.2. Supplemental Indentures With Consent of Holders.

Section 9.2 of the Base Indenture shall not be applicable to the Securities.

The Company, together with the Trustee, may modify and amend this Seventh Supplemental Indenture, the Base Indenture and the terms of the Securities with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities; provided that no modification or amendment may, without the consent of each affected Holder of each Security:

(1) change the Stated Maturity of the principal of, or any installment of or interest on, the Securities;

(2) reduce the principal amount of, or any premium, if any, or rate of interest on, the Securities;

(3) reduce any amount payable upon the redemption of the Securities or, except as expressly provided elsewhere herein, change the time at which the Securities may be redeemed pursuant to Section 4.1 hereof;

(4) change any Place of Payment where, or the currency in which, any principal of, or premium, if any, or interest on, the Securities are payable;

(5) impair the right of any Holder of a Security to receive payment of principal of and interest on such Holder’s Security on or after the Stated Maturity or Redemption Date or to institute suit for the enforcement of any payment on, or with respect to, any Security on or after the Stated Maturity or Redemption Date;

(6) reduce the percentage in principal amount of the Outstanding Securities, the consent of whose Holders is required for modification or amendment of the Base Indenture or this Seventh Supplemental Indenture, for waiver of compliance with certain provisions of the Base Indenture or this Seventh Supplemental Indenture or waiver of certain Defaults;

(7) release any Guarantor from any of its obligations under its Guarantee or the Base Indenture or this Seventh Supplemental Indenture other than in accordance with the terms thereof or hereof; or

(8) modify any of the above provisions.


Any modification or amendment to, or waiver of, the provisions of this Seventh Supplemental Indenture and the terms of the Securities that relate to the Special Mandatory Redemption set forth in Sections 4.2 or 4.3 shall require the written consent of the Holders of at least 66 2/3% in aggregate principal amount of the Outstanding Securities. In addition, any modification or amendment to, or waiver of, the provisions in the Indenture and the terms of the Securities that relate to the items set forth in Section 10.10 of the Base Indenture shall require the written consent of at least a majority in principal amount of the Outstanding Securities.

In addition, the Holders of at least a majority in aggregate principal amount of the Outstanding Securities may, on behalf of the Holders of all the Securities, waive any past default under the Base Indenture or this Seventh Supplemental Indenture and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any Securities or in respect of a covenant or provision that under the Base Indenture or this Seventh Supplemental Indenture cannot be modified or amended without the consent of each Holder. In addition, the Holders of at least a majority in aggregate principal amount of the Outstanding Securities may, on behalf of the Holders of all Securities, waive compliance with the Company’s covenants described under Sections 10.8 and 10.9 of the Indenture.

ARTICLE VIII

Miscellaneous.

SECTION 8.1. Governing Law; Waiver of Jury Trial

THIS SEVENTH SUPPLEMENTAL INDENTURE, THE GUARANTEES AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SEVENTH SUPPLEMENTAL INDENTURE, THE GUARANTEES, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

SECTION 8.2. Supplemental Indenture May be Executed in Counterparts.

This Seventh Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Seventh Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Seventh Supplemental Indenture as to the parties hereto and may be used in lieu of the original Seventh Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.


SECTION 8.3. Separability Clause.

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.


IN WITNESS WHEREOF, the parties hereto have caused this Seventh Supplemental Indenture to be duly executed all as of the day and year first above written.

[Signature Pages To Follow]


 

ARISTOTLE HOLDING, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President
EXPRESS SCRIPTS, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President

AIRPORT HOLDINGS, LLC

ESI REALTY, LLC

By: Express Scripts, Inc., as sole Member
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President

 

[Seventh Supplemental Indenture]


 

BYFIELD DRUG, INC.

CARE CONTINUUM, INC.

CFI OF NEW JERSEY, INC.

CHESAPEAKE INFUSION, INC.

CONNECTYOURCARE COMPANY LLC

CONNECTYOURCARE, LLC

CURASCRIPT PBM SERVICES INC.

DIVERSIFIED PHARMACEUTICAL SERVICES, INC.

ESI ACQUISITION, INC.

ESI CLAIMS, INC.

ESI ENTERPRISES, LLC

ESI MAIL ORDER PROCESSING, INC.

EXPRESS SCRIPTS CANADA HOLDING CO.

EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC

EXPRESS SCRIPTS SERVICES COMPANY

FRECO, INC.

FREEDOM SERVICE COMPANY, LLC

HEALTHBRIDGE, INC.

HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC.

iBIOLOGIC, INC.

IVTX, INC.

LYNNFIELD COMPOUNDING CENTER, INC.

LYNNFIELD DRUG, INC.

MATRIX GPO LLC

NATIONAL PRESCRIPTION ADMINISTRATORS, INC.

PRIORITY HEALTHCARE CORPORATION

PRIORITY HEALTHCARE CORPORATION WEST

PRIORITY HEALTHCARE DISTRIBUTION, INC.

PRIORITY HEALTHCARE PHARMACY, INC.

PRIORITYHEALTHCARE.COM, INC.

SINUSPHARMACY, INC.

SPECIALTY INFUSION PHARMACY, INC.

SPECTRACARE, INC.

SPECTRACARE HEALTH CARE VENTURES, INC.

SPECTRACARE INFUSION PHARMACY, INC.

VALUE HEALTH, INC.

YOURPHARMACY.COM, INC.

By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President

 

[Seventh Supplemental Indenture]


 

CURASCRIPT, INC.

ESI MAIL PHARMACY SERVICE, INC.

EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.

EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.

MOORESVILLE ON-SITE PHARMACY, LLC

By:  

/s/ Patrick McNamee

  Name:   Patrick McNamee
  Title:   President

 

[Seventh Supplemental Indenture]


 

ESI-GP HOLDINGS, INC.
ESI RESOURCES, INC.
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President
ESI PARTNERSHIP
By:   Express Scripts, Inc., as Partner
By:  

/s/ Martin P. Akins

  Name:   Martin P. Akins
  Title:   Vice President and Deputy General Counsel
By:   ESI-GP Holdings, Inc., as Partner
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President

 

[Seventh Supplemental Indenture]


 

SPECTRACARE OF INDIANA
By:   Spectracare, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
By:   Care Continuum, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
EXPRESS SCRIPTS MSA, LLC
EXPRESS SCRIPTS WC, INC.
By:  

/s/ Edward Ignaczak

  Name:   Edward Ignaczak
  Title:   President

EXPRESS SCRIPTS SENIOR CARE, INC.

EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC.

By:  

/s/ George Paz

  Name:   George Paz
  Title:   President

EXPRESS SCRIPTS CANADA HOLDING, LLC

By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President

 

[Seventh Supplemental Indenture]


 

Wells Fargo Bank, National Association,

As Trustee

By:  

/s/ Richard Prokosch

  Name:   Richard Prokosch
  Title:   Vice President

 

[Seventh Supplemental Indenture]


RULE 144A/REGULATION S APPENDIX

PROVISIONS RELATING TO INITIAL SECURITIES,

PRIVATE EXCHANGE SECURITIES

AND EXCHANGE SECURITIES

1. Definitions

1.1 Definitions

For the purposes of this Appendix the following terms shall have the meanings indicated below:

Applicable Procedures ” means, with respect to any transfer or transaction prior to the expiration of the Restricted Period and involving a Regulation S Global Security or beneficial interest therein, the rules and procedures of the Depository for such a transfer or transaction, to the extent applicable and as in effect from time to time.

Definitive Security ” means a certificated Initial Security or Exchange Security or Private Exchange Security bearing, if required, the appropriate restricted securities legend set forth in Section 2.3(e).

Depository ” means The Depository Trust Company, its nominees and their respective successors.

Exchange Securities ” means any securities issued pursuant to the Indenture in connection with a Registered Exchange Offer pursuant to a Registration Rights Agreement.

Initial Purchaser ” means with respect to each issuance of Initial Securities, the Persons purchasing such Initial Securities under the related Purchase Agreement.

Initial Securities ” means any securities other than Exchange Securities and Private Exchange Securities issued pursuant to the Indenture.

Issue Date ” means the date on which Initial Securities are issued pursuant to a supplemental indenture to the Base Indenture or an Officers’ Certificate pursuant to Section 3.1 of the Base Indenture.

Private Exchange ” means the offer by the Company, pursuant to a Registration Rights Agreement, to the Initial Purchaser to issue and deliver to the Initial Purchaser, in exchange for the Initial Securities held by the Initial Purchaser as part of its initial distribution, a like aggregate principal amount of Private Exchange Securities.

Private Exchange Securities ” means any securities issued in connection with a Private Exchange.


Purchase Agreement ” means with respect to each issuance of Initial Securities, the purchase agreement or underwriting agreement among the Company, the Guarantors and the Persons purchasing such Securities.

QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

Registered Exchange Offer ” means an offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Securities, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of Exchange Securities registered under the Securities Act.

Registration Rights Agreement ” means, with respect to each issuance of Securities issued in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, among the Company, the Guarantors and the Persons purchasing such Securities under the related Purchase Agreement.

Restricted Period ” means, with respect to any Securities, the period of 40 consecutive days beginning on and including the later of (i) the day on which such Securities are first offered to Persons other than distributors (as defined in Regulation S under the Securities Act) in reliance on Regulation S and (ii) the issue date with respect to such Securities.

Rule 144A Securities ” means all Securities offered and sold to QIBs in reliance on Rule 144A.

Securities Act ” means the Securities Act of 1933, as amended.

Securities Custodian ” means the custodian with respect to a Global Security (as appointed by the Depository), or any successor Person thereto and shall initially be the Trustee.

Shelf Registration Statement ” means the shelf registration statement filed by the Company in connection with the offer and sale of Initial Securities or Private Exchange Securities pursuant to a Registration Rights Agreement.

Transfer Restricted Securities ” means Securities that bear or are required to bear the legend relating to restrictions on transfer relating to the Securities Act set forth in Section 2.3(e) hereto.

 

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1.2 Other Definitions

 

Term

   Defined in Section:  

“Agent Members”

     2.1 (b) 

“Clearstream, Luxembourg”

     2.1 (a) 

“Euroclear”

     2.1 (a) 

“Global Securities”

     2.1 (a) 

“Regulation S”

     2.1 (a) 

“Regulation S Global Security”

     2.1 (a) 

“Regulation S Permanent Global Security”

     2.1 (a) 

“Regulation S Temporary Global Security”

     2.1 (a) 

“Restricted Securities Legend”

     2.3 (e) 

“Rule 144A”

     2.1 (a) 

“Rule 144A Global Security”

     2.1 (a) 

2. The Securities.

2.1(a)  Form and Dating. The Initial Securities were offered and sold by the Company pursuant to a Purchase Agreement. The Initial Securities will be resold initially only to (i) QIBs in reliance on Rule 144A under the Securities Act (“ Rule 144A ”) and (ii) in offshore transactions to Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S under the Securities Act (“ Regulation S ”). Initial Securities may thereafter be transferred to, among others, QIBs and purchasers in reliance on Regulation S, subject to the restrictions on transfer set forth herein. Initial Securities initially resold pursuant to Rule 144A shall be issued initially in the form of one or more securities in registered, global form (collectively, the “ Rule 144A Global Security ”); and Initial Securities initially resold pursuant to Regulation S shall be issued initially in the form of one or more temporary securities in registered, global form (collectively, the “ Regulation S Temporary Global Security ”), in each case without interest coupons and with the global securities legend and the applicable restricted securities legend set forth Section 2.3(e) hereto, which shall be deposited on behalf of the purchasers of the Initial Securities represented thereby with the Securities Custodian and registered in the name of the Depository or a nominee of the Depository, duly executed by the Company and authenticated by the Trustee as provided in the Base Indenture. Until the expiration of the Restricted Period, beneficial ownership interests in the Regulation S Temporary Global Securities may be held only through Euroclear Bank S.A./N.V., as operator of the Euroclear System (“ Euroclear ”), and Clearstream Banking, société anonyme (“ Clearstream,

 

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Luxembourg ”), as indirect participants in DTC, unless transferred to a Person that takes delivery through a Rule 144A Global Security in accordance with the certification requirements described in the second succeeding paragraph below. Except as set forth in this Section 2.1(a), beneficial ownership interests in a Regulation S Temporary Global Security will not be exchangeable for interests in the Rule 144A Global Security or any other Security prior to the expiration of the Restricted Period and then, after the expiration of the Restricted Period, may be exchanged for one or more permanent securities in registered, global form without interest coupons (collectively, the “ Regulation S Permanent Global Security ” and, together with the Regulation S Temporary Global Security, the “ Regulation S Global Security ”) or a Definitive Security upon (1) delivery to DTC of certification of compliance with the transfer restrictions applicable to the Securities and pursuant to Regulation S as provided in the Indenture, (2) a certification in form satisfactory to the Trustee that beneficial ownership interests in such Regulation S Temporary Global Security are owned either by non-U.S. persons or U.S. persons who purchased such interests in a transaction that did not require registration under the Securities Act and (3) in the case of an exchange for Definitive Securities, in compliance with the requirements described in Section 2.4(a) of this Appendix.

Definitive Securities may not be exchanged for beneficial interests in any Global Security unless the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that such transfer will comply with the appropriate transfer restrictions applicable to such Securities.

Prior to the expiration of the Restricted Period, beneficial interests in Regulation S Global Securities may be exchanged for interests in Rule 144A Global Securities only if (1) such exchange occurs in connection with a transfer of Securities pursuant to Rule 144A and (2) the transferor of the beneficial interest in the Regulation S Global Security first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that the beneficial interest in the Regulation S Global Security is being transferred to a Person (a) whom the transferor reasonably believes to be a QIB, (b) is purchasing for its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A, and (c) in accordance with all applicable securities laws of the states of the United States and other jurisdictions.

Beneficial interests in a Rule 144A Global Security may be transferred to a Person who takes delivery in the form of an interest in a Regulation S Global Security, whether before or after the expiration of the Restricted Period, only if the transferor first delivers to the Trustee a written certificate (in the form provided in the Indenture) to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if available) under the Securities Act.

The Rule 144A Global Security, the Regulation S Global Security and any Global Securities in fully registered form without the Restricted Securities Legend are collectively referred to herein as “ Global Securities .” The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided.

(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Security deposited with or on behalf of the Depository.

 

4


The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver initially one or more Global Securities that (a) shall be registered in the name of the Depository for such Global Security or Global Securities or the nominee of such Depository and (b) shall be delivered by the Trustee to such Depository or pursuant to such Depository’s instructions or held by the Trustee as custodian for the Depository.

Members of, or participants in, the Depository (“ Agent Members ”) shall have no rights under the Indenture with respect to any Global Security held on their behalf by the Depository or by the Trustee as the custodian of the Depository or under such Global Security, and the Company, the Trustee and any agent of the Company or the Trustee shall be entitled to treat the Depository as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices of such Depository governing the exercise of the rights of a holder of a beneficial interest in any Global Security.

(c) Definitive Securities. Except as provided in this Section 2.1 or Section 2.3 or 2.4, owners of beneficial interests in Global Securities shall not be entitled to receive physical delivery of Definitive Securities.

2.2 Authentication.  The Trustee shall authenticate and deliver: (1) on the Issue Date, Initial Securities in an aggregate principal amount specified in the written order of the Company pursuant to Section 3.3 of the Indenture, (2) Exchange Securities or Private Exchange Securities for issue only in a Registered Exchange Offer or a Private Exchange, respectively, pursuant to a Registration Rights Agreement, for a like principal amount of Initial Securities, and (3) a Global Security without the Restricted Securities Legend pursuant to Section 2.3(e) of this Appendix, in each case upon a Company Order. Such Company Order shall specify the amount of the Securities to be authenticated and the date on which the original issue of Securities is to be authenticated.

2.3 Transfer and Exchange.

(a) Transfer and Exchange of Definitive Securities . When Definitive Securities are presented to the Security Registrar with a request:

 

  (x) to register the transfer of such Definitive Securities; or

 

  (y) to exchange such Definitive Securities for an equal principal amount of Definitive Securities of other authorized denominations,

the Security Registrar shall register the transfer or make the exchange as requested pursuant to the terms of the Indenture and if its reasonable requirements for such transaction are met; provided , however , that the Definitive Securities surrendered for transfer or exchange:

(i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing; and

 

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(ii) if such Definitive Securities are required to bear a restricted securities legend, they are being transferred or exchanged pursuant to an effective registration statement under the Securities Act, pursuant to Section 2.3(b) or pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:

(A) if such Definitive Securities are being delivered to the Security Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or

(B) if such Definitive Securities are being transferred to the Company, a certification to that effect; or

(C) if such Definitive Securities are being transferred (x) pursuant to an exemption from registration in accordance with Rule 144A, Regulation S or Rule 144 under the Securities Act; or (y) in reliance upon another exemption from the requirements of the Securities Act: (i) a certification to that effect (in the form set forth on the reverse of the Security) and (ii) if the Company so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section 2.3(e)(i).

(b) Restrictions on Transfer of a Definitive Security for a Beneficial Interest in a Global Security. A Definitive Security may not be exchanged for a beneficial interest in a Rule 144A Global Security or a Regulation S Global Security except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:

(i) certification, in the form set forth on the reverse of the Security, that such Definitive Security is either (A) being transferred to a QIB in accordance with Rule 144A or (B) being transferred after expiration of the Restricted Period by a Person who initially purchased such Security in reliance on Regulation S to a buyer who elects to hold its interest in such Security in the form of a beneficial interest in the Regulation S Global Security; and

(ii) written instructions directing the Trustee to make, or to direct the Securities Custodian to make, an adjustment on its books and records with respect to such Rule 144A Global Security (in the case of a transfer pursuant to clause (b)(i)(A)) or Regulation S Global Security (in the case of a transfer pursuant to clause (b)(i)(B)) to reflect an increase in the aggregate principal amount of the Securities represented by the Rule 144A Global Security or Regulation S Global Security, as applicable, such instructions to contain information regarding the Depository account to be credited with such increase,

then the Trustee shall cancel such Definitive Security and cause, or direct the Securities Custodian to cause, in accordance with the standing instructions and procedures existing between the Depository and the Securities Custodian, the aggregate principal amount of Securities

 

6


represented by the Rule 144A Global Security or Regulation S Global Security, as applicable, to be increased by the aggregate principal amount of the Definitive Security to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Global Security or Regulation S Global Security, as applicable, equal to the principal amount of the Definitive Security so canceled. If no Rule 144A Global Securities or Regulation S Global Securities, as applicable, are then outstanding, the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officers’ Certificate of the Company, a new Rule 144A Global Security or Regulation S Global Security, as applicable, in the appropriate principal amount.

(c) Transfer and Exchange of Global Securities.

(i) The transfer and exchange of Global Securities or beneficial interests therein shall be effected through the Depository, in accordance with the Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor. A transferor of a beneficial interest in a Global Security shall deliver to the Security Registrar a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository to be credited with a beneficial interest in the Global Security. The Security Registrar shall, in accordance with such instructions instruct the Depository to credit to the account of the Person specified in such instructions a beneficial interest in the Global Security and to debit the account of the Person making the transfer in an amount equal to the beneficial interest in the Global Security being transferred.

(ii) If the proposed transfer is a transfer of a beneficial interest in one Global Security to a beneficial interest in another Global Security, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Security to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Security Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Security from which such interest is being transferred.

(iii) Notwithstanding any other provisions of this Appendix (other than the provisions set forth in Section 2.4), a Global Security may not be transferred as a whole except by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.

(iv) In the event that a Global Security is exchanged for Definitive Securities pursuant to Section 2.4 of this Appendix, prior to the consummation of a Registered Exchange Offer or the effectiveness of a Shelf Registration Statement with respect to such Securities, such Securities may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 2.3 (including the certification requirements set forth on the reverse of the Initial Securities intended to ensure that such transfers comply with Rule 144A, Regulation S or another applicable exemption under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Company.

 

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(d) Restrictions on Transfer of Regulation S Global Securities. During the Restricted Period, beneficial ownership interests in Regulation S Global Securities may only be sold, pledged or transferred in accordance with the Applicable Procedures and only (i) to the Company, (ii) in an offshore transaction in accordance with Regulation S or (iii) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any State of the United States.

(e) Legend.

(i) Except as permitted by the following paragraphs (ii), (iii) and (iv), each Security certificate evidencing the Global Securities (and all Securities issued in exchange therefor or in substitution thereof), in the case of Securities offered other than in reliance on Regulation S, shall bear a legend in substantially the following form (together with the legend in the second paragraph of this Section 2.3(e)(i), the “ Restricted Securities Legend ”):

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.

THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER

 

8


WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.

Each certificate evidencing a Security offered in reliance on Regulation S shall bear a legend in substantially the following form:

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.

Each Definitive Security shall also bear the following additional legend:

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

(ii) Upon any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Global Security) pursuant to Rule 144 under the Securities Act, the Security Registrar shall permit the transferee thereof to exchange such Transfer Restricted Security for a Definitive Security that does not bear the legend set forth above and rescind any restriction on the transfer of such Transfer Restricted Security, if the transferor thereof certifies in writing to the Security Registrar that such sale or transfer was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Security); and to the extent permitted by law at any time after one year has elapsed following the Issue Date, if the Securities are freely tradeable without restriction pursuant to Rule 144 under the Securities Act (or successor rule), the Security Registrar shall permit the removal of the Restricted Securities Legend and rescind any restriction on the transfer of such Transfer Restricted Security if the Company delivers to the Trustee an opinion reasonably satisfactory to the Trustee that the removal of the Restricted Securities Legend is in compliance with the Securities Act.

(iii) After a transfer of any Initial Securities or Private Exchange Securities pursuant to and during the period of the effectiveness of a Shelf Registration Statement with respect to such Initial Securities or Private Exchange Securities, as the case may be, all requirements pertaining to legends on such Initial Security or such Private Exchange

 

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Security will cease to apply and a certificated Initial Security or Private Exchange Security or an Initial Security or Private Exchange Security in global form, in each case without restrictive transfer legends, will be available to the transferee of the Holder of such Initial Securities or Private Exchange Securities upon exchange of such transferring Holder’s certificated Initial Security or Private Exchange Security or directions to transfer such Holder’s interest in the Global Security, as applicable.

(iv) Upon the consummation of a Registered Exchange Offer with respect to the Initial Securities, all requirements pertaining to such Initial Securities that Initial Securities issued to certain Holders be issued in global form will still apply with respect to Holders of such Initial Securities that do not exchange their Initial Securities, and Exchange Securities in certificated or global form, in each case without the restricted securities legend set forth in Exhibit 1 hereto will be available to Holders that exchange such Initial Securities in such Registered Exchange Offer.

(v) Upon the consummation of a Private Exchange with respect to the Initial Securities, all requirements pertaining to such Initial Securities that Initial Securities issued to certain Holders be issued in global form will still apply with respect to Holders of such Initial Securities that do not exchange their Initial Securities, and Private Exchange Securities in global form with the global securities legend and the applicable restricted securities legend set forth in Exhibit 1 hereto will be available to Holders that exchange such Initial Securities in such Private Exchange.

(f) Cancellation or Adjustment of Global Security. At such time as all beneficial interests in a Global Security have either been exchanged for Definitive Securities, redeemed, purchased or canceled, such Global Security shall be returned to the Depository for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for Definitive Securities, redeemed, purchased or canceled, the principal amount of Securities represented by such Global Security shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Securities Custodian for such Global Security) with respect to such Global Security, by the Trustee or the Securities Custodian, to reflect such reduction.

(g) No Obligation of the Trustee.

(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the Depository or other Person with respect to the accuracy of the records of the Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depository) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities shall be given or made only to or upon the order of the registered Holders (which shall be the Depository or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depository subject to the applicable rules and procedures of the Depository. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its members, participants and any beneficial owners.

 

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(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depository participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

2.4 Definitive Securities.

(a) A Global Security deposited with the Depository or with the Trustee as Securities Custodian for the Depository pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the form of Definitive Securities in an aggregate principal amount equal to the principal amount of such Global Security, in exchange for such Global Security, only if such transfer complies with Section 2.3 hereof and (i) the Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a “clearing agency” registered under the Exchange Act, in either case, and a successor depository is not appointed by the Company within 90 days of such notice, (ii) a Default with respect to the Securities has occurred and is continuing and DTC or the Company specifically requests such exchange, (iii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of Definitive Securities under the Indenture or (iv) upon prior written notice given to the Trustee by or on behalf of the Depository in accordance with the Indenture.

(b) Any Global Security that is transferable to the beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by the Depository to the Trustee located at its principal corporate trust office in the Borough of Manhattan, The City of New York, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Security, an equal aggregate principal amount of Definitive Securities of authorized denominations. Any portion of a Global Security transferred pursuant to this Section 2.4 shall be executed, authenticated and delivered only in minimum denominations of $2,000 principal amount and any integral multiple of $1,000 in excess thereof and registered in such names as the Depository shall direct. Any Definitive Security delivered in exchange for an interest in a Transfer Restricted Security shall, except as otherwise provided by Section 2.3(e) hereof, bear the applicable restricted securities legend and definitive securities legend set forth in Exhibit 1 hereto unless that legend is not required by applicable law.

(c) Subject to the provisions of Section 2.4(b) hereof, the registered Holder of a Global Security shall be entitled to grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Securities.

 

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(d) In the event of the occurrence of one of the events specified in Section 2.4(a) hereof, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Securities in definitive, fully registered form without interest coupons.

 

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APPENDIX

EXHIBIT 1

[FORM OF FACE OF INITIAL SECURITY]

[Global Securities Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]

[Restricted Securities Legend for Securities offered otherwise than in Reliance on Regulation S]

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.

THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR

 

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OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.

[Restricted Securities Legend for Securities Offered in Reliance on Regulation S.]

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.

[Definitive Securities Legend]

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

2


ARISTOTLE HOLDING, INC.

3.900% SENIOR NOTE DUE 2022

 

No.                         Principal Amount (US)$        

CUSIP NO.                     

ISIN NO.                     

Aristotle Holding, Inc., a corporation organized and existing under the laws of the State of Delaware (herein called the “ Company ”, which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of                      United States Dollars (U.S.$         ) on February 15, 2022 and to pay interest thereon, from February 9, 2012, or from the most recent Interest Payment Date to which interest has been paid or duly provided for to but excluding the next Interest Payment Date, which shall be February 15 and August 15 of each year, commencing August 15, 2012, at the per annum rate of 3.900%, or as such rate may be adjusted pursuant to the terms hereof (the “ Security Interest Rate ”), until the principal hereof is paid or made available for payment.

The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest, which shall be the day that is 15 days prior to the relevant Interest Payment Date (whether or not a Business Day). Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Securities not less than 10 days prior to the Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any automated quotation system or securities exchange on which the Securities may be quoted or listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will pay interest on overdue principal at the rate borne by this Security, and it will pay interest on overdue installments of interest at the same rate to the extent lawful.

Subject to the provisions of the Registration Rights Agreement, if a Registration Default (as defined in the Registration Rights Agreement) occurs, additional interest will accrue on this Security from and including the date on which such Registration Default occurs to but excluding the date on which all such Registration Defaults have been cured or the Securities cease to be Transfer Restricted Securities (as defined in the Registration Rights Agreement), whichever is earlier, at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default, and such rate will increase by 0.25% per annum on the 91st day following the occurrence of such Registration Default (provided that the maximum additional interest rate during the initial 90-day period shall be 0.25% per annum and the maximum additional interest rate thereafter shall be 0.50% per annum, in each case regardless of the number of Registration Defaults that have occurred and are continuing). The Company will pay such additional interest on regular Interest Payment Dates.

 

3


The Place of Payment for this Security will be the corporate trust office of the Trustee at 625 Marquette Avenue, 11th Floor, Minneapolis, Minnesota 55479, or as otherwise provided in the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a Definitive Security (including principal, premium and interest) by mailing a check to the registered address of each Holder thereof as such address appears on the Security Register; provided , however , that payments on a Definitive Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

ARISTOTLE HOLDING, INC.
By:  

 

Name:  
Title:  

 

Attest:
By:  

 

Name:  
Title:  

 

5


CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated referred to in the within-mentioned Indenture.

Dated:

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:  

 

  Authorized Signatory

 

6


[FORM OF REVERSE OF SECURITY]

(1) Indenture . This Security is one of a duly authorized issue of securities of the Company designated as its “ 3.900% Senior Notes due 2022 ” (herein called the “ Securities ”), issued under a Seventh Supplemental Indenture, dated as of February 9, 2012, to an indenture, dated as of November 21, 2011 (as it may be amended or supplemented from time to time in accordance with the terms thereof and herein with the Seventh Supplemental Indenture, collectively, the “ Indenture ”), between the Company, the Guarantors and Wells Fargo Bank, National Association, as Trustee (herein called the “ Trustee ,” which term includes any successor trustee under the Indenture), to which reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The aggregate principal amount of Initial Securities Outstanding at any time may not exceed $1,000,000,000 in aggregate principal amount, except for Securities issued, authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of the Base Indenture and except for any Securities which, pursuant to Section 3.3 of the Base Indenture, are deemed never to have been authenticated and delivered. The Seventh Supplemental Indenture pursuant to which this Security is issued provides that Additional Securities may be issued thereunder, if certain conditions are met. The Initial Securities issued pursuant to the Seventh Supplemental Indenture and all Exchange Securities or Private Exchange Securities issued in exchange therefor will be treated as a single class for all purposes under the Indenture.

The Indenture contains covenants that limit the ability of the Company and any Restricted Subsidiary to create liens on assets and to engage in sale/leaseback transactions. The Indenture also contains covenants that limit the ability of the Company and, prior to the consummation of the Mergers, of Express Scripts to consolidate, merge or transfer all or substantially all of their respective assets. These covenants are subject to important exceptions and qualifications.

All terms used in this Security which are defined in the Indenture (including in the Appendix thereto) shall have the meanings assigned to them in the Indenture. In the event of a conflict or inconsistency between this Security and the Indenture, the provisions of the Indenture shall govern.

(2) Optional Redemption . At any time prior to Maturity, the Company may at its option redeem all or a part of the Securities upon not more than 60 nor less than 30 days prior notice, at a Redemption Price equal to the greater of: (i) 100% of the aggregate principal amount of any Securities being redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date; or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities to be redeemed (exclusive of unpaid interest accrued thereon to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year comprised of twelve 30-day months) at the Treasury Rate plus 40 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.

 

7


(3) Mandatory Redemption . Except as provided in Sections 4 and 5 below, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.

(4) Special Mandatory Redemption . If for any reason (i) the Mergers are not consummated on or prior to the Special Mandatory Redemption Triggering Date or (ii) the Merger Agreement is terminated at any time prior thereto, then the Company shall redeem all the Securities on the Special Mandatory Redemption Date at a price equal to 101% of the aggregate accreted principal amount of such Security, plus accrued and unpaid interest from the date of original issuance to, but excluding, the Special Mandatory Redemption Date (subject to the right of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).

(5) Change of Control Triggering Event . In the event of a Change of Control Triggering Event, the Holders may require the Company to purchase for cash all or a portion of their Securities at a purchase price equal to 101% of the aggregate principal amount of the Securities repurchased, plus accrued and unpaid interest, if any, pursuant to the provisions of Section 10.10 of the Base Indenture.

(6) Registration Rights. The Company is party to a Registration Rights Agreement, dated as of February 9, 2012, among the Company, the Guarantors and the representatives of the Initial Purchasers named therein, pursuant to which it is obligated to pay additional interest on the Securities upon the occurrence of certain events specified in the Registration Rights Agreement.

(7) Global Security . If this Security is a Global Security, then the transfer and exchange of this Security or beneficial interests herein shall be effected through the Depository in accordance with the Indenture (including applicable restrictions on transfer set forth therein, if any) and the procedures of the Depository therefor. The Security Registrar shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the Depository’s Procedures.

(8) Defaults and Remedies . If an Event of Default with respect to this Security occurs and is continuing, the principal of and any unpaid premium and interest on (or, if this Security is an Original Issue Discount Security, such portion of the principal amount of such Securities as may be specified in the terms thereof) all outstanding securities of this series, may be declared due and payable in the manner and with the effect provided in the Indenture. The Holders of at least a majority in principal amount of the Outstanding Securities may rescind or annul that acceleration if all Events of Default with respect to the Securities other than the non-payment of accelerated principal have been cured or waived as provided in the Indenture.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default, and, among other things, the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities shall have made a written request to the Trustee to pursue a remedy in

 

8


respect of such Event of Default as Trustee. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any amounts due on the Securities on or after the respective due dates expressed herein.

(9) Discharge and Defeasance . Subject to certain conditions, the Company at any time shall be entitled to terminate some or all of the Company’s and the Guarantors’ obligations under the Securities, the Guarantees and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be.

(10) Amendment, Supplement and Waiver . The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities. The provisions relating to the Special Mandatory Redemption set forth in Sections 4.2 and 4.3 of the Seventh Supplemental Indenture may not be modified or waived without the written consent of 66 2/3% in aggregate principal amount of the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Outstanding Securities, on behalf of the Holders of all such Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security or such other Security. Certain modifications or amendments to the Indenture require the consent of the Holder of each Outstanding Security affected.

Notwithstanding any other provision of the Indenture or this Security, the Holder of this Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.7 of the Base Indenture) interest on any such Security on the Stated Maturity date expressed herein (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

(11) Denomination, Registration and Transfer . The Securities are in registered form without coupons in minimum denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this Security is transferable only upon surrender of this Security for registration of transfer. Upon surrender for registration of transfer of this Security at the office or agency of the Company in a Place of Payment for this Security, the Company, if the requirements of the Indenture are met, shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of authorized denominations and of like tenor and aggregate principal amount, and having endorsed thereon a Guarantee executed by the Guarantors.

 

9


If the requirements of this Indenture are met, then, at the option of the Holder, Securities may be exchanged for other Securities, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, and having endorsed thereon a Guarantee executed by the Guarantor. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee may treat the Person in whose name such Security is registered as the owner thereof for all purposes, whether or not such Security be overdue, and none of the Company, the Guarantors or the Trustee or other such agent shall be affected by notice to the contrary.

(12) Guarantee . Payment of this Security is jointly and severally and fully and unconditionally guaranteed by the Guarantors that have become and continue to be Guarantors pursuant to the Indenture. Guarantors may be released from their obligations under the Indenture and their Guarantees under the circumstances specified under the Indenture.

(13) No Recourse Against Others. None of the Company’s or any Guarantor’s past, present or future directors, officers, employees or shareholders, as such, shall have any liability for any of the Company’s or any Guarantor’s obligations under the Indenture or the Securities or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a Security, each Holder waives and releases all such liability. This waiver and release is part of the consideration for the issuance of the Securities.

(14) Holders’ Compliance with Registration Rights Agreement. Each Holder, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement in respect of this Security, including the obligations of the Holders with respect to a registration and the indemnification of the Company to the extent provided therein.

(15) Governing Law. THE INDENTURE, THIS SECURITY AND ANY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge to the Securityholder a copy of the Indenture which has in it the text of this Security in larger type. Requests may be made to:

Aristotle Holding, Inc.

One Express Scripts Way

St. Louis, Missouri 63121

 

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ABBREVIATIONS

The following abbreviations, when used in the inscription of the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations:

TEN COM (= tenant in common)

TEN ENT (= tenants by the entireties (Cust))

JT TEN (= joint tenants with right of survivorship and not as tenants in common)

UNIF GIFT MIN ACT (= under Uniform Gifts to Minors Act)

Additional abbreviations may also be used though not in the above list.

 

11


 

 

ASSIGNMENT FORM

To assign this Security, fill in the form below:

I or we assign and transfer this Security to

(Print or type assignee’s name, address and zip code)

(Insert assignee’s soc. sec. or tax I.D. No.)

and irrevocably appoint                      agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.

 

 

Date:  

 

        Your Signature:   

 

 

Sign exactly as your name appears on the other side of this Security.

In connection with any transfer of any of the Securities evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144 under the Securities Act after the later of the date of original issuance of such Securities and the last date, if any, on which such Securities were owned by the Company or any Affiliate of the Company, the undersigned confirms that such Securities are being transferred in accordance with its terms:

CHECK ONE BOX BELOW

 

(1)    ¨    pursuant to an effective registration statement under the Securities Act; or
(2)    ¨    in the United States to a person whom the seller reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) in a transaction meeting the requirements of Rule 144A; or
(3)    ¨    outside the United States in an offshore transaction in accordance with Rule 904 under the Securities Act in compliance with Rule 904 under the Securities Act of 1933, as amended; or
(4)    ¨    pursuant to the exemption from registration under the Securities Act provided by Rule 144.

Unless one of the boxes is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered

 

12


holder thereof; provided , however , that if box (4) is checked, the Trustee shall be entitled to require, prior to registering any such transfer of the Securities, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, as amended.

 

Signature

Signature Guarantee:

 

Signature must be

guaranteed

                   Signature

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

     

 

 

 

13


TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.

The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

Dated:  

 

      

 

  
      Notice:            To be executed by an executive officer   

 

14


[TO BE ATTACHED TO GLOBAL SECURITIES]

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

The following increases or decreases in this Global Security have been made:

 

Date of Exchange   

Amount of decrease in

Principal amount of this

Global Security

  

Amount of increase in

Principal amount of this

Global Security

  

Principal amount of this

Global Security following

such decrease or increase

  

Signature of authorized

signatory of Trustee or

Securities Custodian

           

 

15


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Security purchased by the Company pursuant to Section 10.10 of the Indenture, check the box:   ¨

¨   If you want to elect to have only part of this Security purchased by the Company pursuant to Section 10.10 of the Indenture, state the amount in principal amount: $        .

 

  Dated:        Your Signature:   

 

        

(Sign exactly as your name appears on the

  other side of this Security.)

  Signature Guarantee:  

 

(Signature must be guaranteed)

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

16


EXHIBIT 2

[FORM OF FACE OF EXCHANGE SECURITY

OR PRIVATE EXCHANGE SECURITY] * / ** /

 

*/ If the Security is to be issued in global form add the Global Securities Legend from Exhibit 1 to the Appendix and the attachment from such Exhibit 1 captioned “[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY.”
**/ If the Security is a Private Exchange Security issued in a Private Exchange to an Initial Purchaser holding an unsold portion of its initial allotment, add the Restricted Securities Legend from Exhibit 1 to the Appendix and replace the Assignment Form included in this Exhibit 2 with the Assignment Form included in such Exhibit 1.


ARISTOTLE HOLDING, INC.

3.900% SENIOR NOTE DUE 2022

 

No.                        Principal Amount (US)$         

CUSIP NO.                     

ISIN NO.                    

Aristotle Holding, Inc., a corporation organized and existing under the laws of the State of Delaware (herein called the “ Company ”, which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of                      United States Dollars (U.S.$         ) on February 15, 2022 and to pay interest thereon, from February 9, 2012, or from the most recent Interest Payment Date to which interest has been paid or duly provided for to but excluding the next Interest Payment Date, which shall be February 15 and August 15 of each year, commencing August 15, 2012, at the per annum rate of 3.900%, or as such rate may be adjusted pursuant to the terms hereof (the “ Security Interest Rate ”), until the principal hereof is paid or made available for payment.

The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest, which shall be the day that is 15 days prior to the relevant Interest Payment Date (whether or not a Business Day). Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Securities not less than 10 days prior to the Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any automated quotation system or securities exchange on which the Securities may be quoted or listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will pay interest on overdue principal at the rate borne by this Security, and it will pay interest on overdue installments of interest at the same rate to the extent lawful.

The Place of Payment for this Security will be the corporate trust office of the Trustee at 625 Marquette Avenue, 11th Floor, Minneapolis, Minnesota 55479, or as otherwise provided in the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Company will make all payments in respect of a Definitive Security (including principal, premium and interest) by mailing a check to the registered address of each Holder thereof as such address appears on the Security Register; provided , however , that payments on a Definitive Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire

 

2


transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

3


IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

ARISTOTLE HOLDING, INC.
By:  

 

Name:  
Title:  

 

Attest:
By:  

 

Name:  
Title:  

 

4


CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated referred to in the within-mentioned Indenture.

Dated:

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:  

 

  Authorized Signatory

 

5


[FORM OF REVERSE OF SECURITY]

(1) Indenture . This Security is one of a duly authorized issue of securities of the Company designated as its “ 3.900% Senior Notes due 2022 ” (herein called the “ Securities ”), issued under a Seventh Supplemental Indenture, dated as of February 9, 2012, to an indenture, dated as of November 21, 2011 (as it may be amended or supplemented from time to time in accordance with the terms thereof and herein with the Seventh Supplemental Indenture, collectively, the “ Indenture ”), between the Company, the Guarantors and Wells Fargo Bank, National Association, as Trustee (herein called the “ Trustee ,” which term includes any successor trustee under the Indenture), to which reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The aggregate principal amount of Initial Securities Outstanding at any time may not exceed $1,000,000,000 in aggregate principal amount, except for Securities issued, authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of the Base Indenture and except for any Securities which, pursuant to Section 3.3 of the Base Indenture, are deemed never to have been authenticated and delivered. The Seventh Supplemental Indenture pursuant to which this Security is issued provides that Additional Securities may be issued thereunder, if certain conditions are met. The Initial Securities issued pursuant to the Seventh Supplemental Indenture and all Exchange Securities or Private Exchange Securities issued in exchange therefor will be treated as a single class for all purposes under the Indenture.

The Indenture contains covenants that limit the ability of the Company and any Restricted Subsidiary to create liens on assets and to engage in sale/leaseback transactions. The Indenture also contains covenants that limit the ability of the Company and, prior to the consummation of the Mergers, of Express Scripts to consolidate, merge or transfer all or substantially all of their respective assets. These covenants are subject to important exceptions and qualifications.

All terms used in this Security which are defined in the Indenture (including in the Appendix thereto) shall have the meanings assigned to them in the Indenture. In the event of a conflict or inconsistency between this Security and the Indenture, the provisions of the Indenture shall govern.

(2) Optional Redemption . At any time prior to Maturity, the Company may at its option redeem all or a part of the Securities upon not more than 60 nor less than 30 days prior notice, at a Redemption Price equal to the greater of: (i) 100% of the aggregate principal amount of any Securities being redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date; or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities to be redeemed (exclusive of unpaid interest accrued thereon to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year comprised of twelve 30-day months) at the Treasury Rate plus 40 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.

 

6


(3) Mandatory Redemption . Except as provided in Sections 4 and 5 below, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.

(4) Special Mandatory Redemption . If for any reason (i) the Mergers are not consummated on or prior to the Special Mandatory Redemption Triggering Date or (ii) the Merger Agreement is terminated at any time prior thereto, then the Company shall redeem all the Securities on the Special Mandatory Redemption Date at a price equal to 101% of the aggregate accreted principal amount of such Security, plus accrued and unpaid interest from the date of original issuance to, but excluding, the Special Mandatory Redemption Date (subject to the right of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).

(5) Change of Control Triggering Event . In the event of a Change of Control Triggering Event, the Holders may require the Company to purchase for cash all or a portion of their Securities at a purchase price equal to 101% of the aggregate principal amount of the Securities repurchased, plus accrued and unpaid interest, if any, pursuant to the provisions of Section 10.10 of the Base Indenture.

(6) Global Security . If this Security is a Global Security, then the transfer and exchange of this Security or beneficial interests herein shall be effected through the Depository in accordance with the Indenture (including applicable restrictions on transfer set forth therein, if any) and the procedures of the Depository therefor. The Security Registrar shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the Depository’s Procedures.

(7) Defaults and Remedies . If an Event of Default with respect to this Security occurs and is continuing, the principal of and any unpaid premium and interest on (or, if this Security is an Original Issue Discount Security, such portion of the principal amount of such Securities as may be specified in the terms thereof) all outstanding securities of this series, may be declared due and payable in the manner and with the effect provided in the Indenture. The Holders of at least a majority in principal amount of the Outstanding Securities may rescind or annul that acceleration if all Events of Default with respect to the Securities other than the non-payment of accelerated principal have been cured or waived as provided in the Indenture.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default, and, among other things, the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities shall have made a written request to the Trustee to pursue a remedy in respect of such Event of Default as Trustee. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any amounts due on the Securities on or after the respective due dates expressed herein.

(8) Discharge and Defeasance . Subject to certain conditions, the Company at any time shall be entitled to terminate some or all of the Company’s and the Guarantors’

 

7


obligations under the Securities, the Guarantees and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity, as the case may be.

(9) Amendment, Supplement and Waiver . The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Securities. The provisions relating to the Special Mandatory Redemption set forth in Sections 4.2 and 4.3 of the Seventh Supplemental Indenture may not be modified or waived without the written consent of 66 2/3% in aggregate principal amount of the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Outstanding Securities, on behalf of the Holders of all such Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security or such other Security. Certain modifications or amendments to the Indenture require the consent of the Holder of each Outstanding Security affected.

Notwithstanding any other provision of the Indenture or this Security, the Holder of this Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.7 of the Base Indenture) interest on any such Security on the Stated Maturity date expressed herein (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

(10) Denomination, Registration and Transfer . The Securities are in registered form without coupons in minimum denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this Security is transferable only upon surrender of this Security for registration of transfer. Upon surrender for registration of transfer of this Security at the office or agency of the Company in a Place of Payment for this Security, the Company, if the requirements of the Indenture are met, shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of authorized denominations and of like tenor and aggregate principal amount, and having endorsed thereon a Guarantee executed by the Guarantors.

If the requirements of this Indenture are met, then, at the option of the Holder, Securities may be exchanged for other Securities, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, and having endorsed thereon a Guarantee executed by the Guarantor. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

 

8


Prior to due presentment of this Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee may treat the Person in whose name such Security is registered as the owner thereof for all purposes, whether or not such Security be overdue, and none of the Company, the Guarantors or the Trustee or other such agent shall be affected by notice to the contrary.

(11) Guarantee . Payment of this Security is jointly and severally and fully and unconditionally guaranteed by the Guarantors that have become and continue to be Guarantors pursuant to the Indenture. Guarantors may be released from their obligations under the Indenture and their Guarantees under the circumstances specified under the Indenture.

(12) No Recourse Against Others. None of the Company’s or any Guarantor’s past, present or future directors, officers, employees or shareholders, as such, shall have any liability for any of the Company’s or any Guarantor’s obligations under the Indenture or the Securities or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a Security, each Holder waives and releases all such liability. This waiver and release is part of the consideration for the issuance of the Securities.

(13) [Holders’ Compliance with Registration Rights Agreement. Each Holder, by acceptance hereof, acknowledges and agrees to the provisions of the Registration Rights Agreement in respect of this Security, including the obligations of the Holders with respect to a registration and the indemnification of the Company to the extent provided therein.] 1

(14) Governing Law. THE INDENTURE, THIS SECURITY AND ANY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

The Company will furnish to any Holder upon written request and without charge to the Securityholder a copy of the Indenture which has in it the text of this Security in larger type. Requests may be made to:

Aristotle Holding, Inc.

One Express Scripts Way

St. Louis, Missouri 63121

ABBREVIATIONS

The following abbreviations, when used in the inscription of the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations:

 

1  

Delete if this is not a Private Exchange Security.

 

9


TEN COM (= tenant in common)

TEN ENT (= tenants by the entireties (Cust))

JT TEN (= joint tenants with right of survivorship and not as tenants in common)

UNIF GIFT MIN ACT (= under Uniform Gifts to Minors Act)

Additional abbreviations may also be used though not in the above list.

 

10


ASSIGNMENT FORM

To assign this Security, fill in the form below:

I or we assign and transfer this Security to

(Print or type assignee’s name, address and zip code)

(Insert assignee’s soc. sec. or tax I.D. No.)

and irrevocably appoint                      agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.

 

 

Date:           Your Signature:   

 

 

Sign exactly as your name appears on the other side of this Security.

 

11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this Security purchased by the Company pursuant to Section 10.10 of the Indenture, check the box:   ¨

¨   If you want to elect to have only part of this Security purchased by the Company pursuant to Section 10.10 of the Indenture, state the amount in principal amount: $        .

 

  Dated:        Your Signature:   

 

        

(Sign exactly as your name appears on the

  other side of this Security.)

  Signature Guarantee:  

 

(Signature must be guaranteed)

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

12


EXHIBIT 3

FORM OF GUARANTEE

For value received, each of the Guarantors (which term includes any successor Person under the Indenture) has jointly and severally and fully and unconditionally guaranteed, to the extent set forth in the Indenture, among the Company, the Guarantors and the Trustee and subject to the provisions in the Indenture, (a) the due and punctual payment in full when due of the principal of, premium, if any, and interest on the Securities and all other amounts due and payable under the Indenture and the Securities by the Company and (b) in case of any extension of time of payment or renewal of any Obligations (with or without notice to the Guarantor), that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article XIII of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee, including provisions for the release thereof. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for the purpose of such provisions.

 

[NAME OF GUARANTOR(S)]
By:  

 

Name:  

 

Title:  

 

Exhibit 10.1

EXECUTION COPY

ARISTOTLE HOLDING, INC.

$1,000,000,000 2.100% Senior Notes Due 2015

$1,500,000,000 2.650% Senior Notes Due 2017

$1,000,000,000 3.900% Senior Notes Due 2022

PURCHASE AGREEMENT

February 6, 2012

C ITIGROUP G LOBAL M ARKETS I NC .,

388 Greenwich Street,

New York, N.Y. 10013

C REDIT S UISSE S ECURITIES (USA) LLC,

Eleven Madison Avenue,

New York, N.Y. 10010-3629

As representatives (the “ Representatives ”) of the Several Initial Purchasers

Dear Sirs:

1. Introductory. Aristotle Holding, Inc., a Delaware corporation (the “ Company ”) and a wholly owned subsidiary of Express Scripts, Inc., a Delaware corporation (“ Express Scripts ”), agrees with the several initial purchasers named in Schedule A hereto (the “ Initial Purchasers ”) to issue and sell to the Initial Purchasers $1,000,000,000 aggregate principal amount of its 2.100% Senior Notes due 2015 (the “ 2015 Notes ”), $1,500,000,000 aggregate principal amount of its 2.650% Senior Notes due 2017 (the “ 2017 Notes ”) and $1,000,000,000 aggregate principal amount of its 3.900% Senior Notes due 2022 (the “ 2022 Notes ” and, together with the 2015 Notes and the 2017 Notes, the “ Offered Securities ”). The Offered Securities will be unconditionally guaranteed (the “ Guarantees ”) by the Closing Date Guarantors (as defined below) and any other entity that becomes a guarantor of the Offered Securities following the Closing Date (as defined below), including the Merger Date Guarantors (as defined below), pursuant to the terms of the Indenture (as defined below). The Offered Securities shall be issued under an indenture, dated as of November 21, 2011 (the “ Base Indenture ”), and supplemented by supplemental indentures (each, a “ Supplemental Indenture ” and, collectively, the “ Supplemental Indentures ”) to be dated as of the Closing Date, among the Company, each of the entities listed on Schedule B-1 hereto (collectively, the “ Closing Date Guarantors ”) and Wells Fargo Bank, National Association, as Trustee (the Base Indenture, as supplemented by the Supplemental Indentures entered into on the Closing Date and as may be supplemented from time to time after the Closing Date, the “ Indenture ”).

Pursuant to the Agreement and Plan of Merger dated as of July 20, 2011, as amended by Amendment No. 1 thereto on November 7, 2011 (the “ Merger Agreement ”), by and among Express Scripts, Medco Health Solutions, Inc., a Delaware corporation (“ Medco ”), the Company, Aristotle Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of the Company (“ Aristotle Merger Sub ”), and Plato Merger Sub, Inc., a Delaware Corporation and a wholly owned subsidiary of the Company (“ Plato Merger Sub ”), Aristotle Merger Sub will merge with and into Express Scripts (the “ Express Scripts Merger ”), with Express Scripts as the surviving corporation, and Plato Merger Sub will merge with and into Medco (collectively with the Express Scripts Merger, the “ Mergers ”), with Medco as the surviving corporation. As a result of the Mergers, Medco and Express Scripts will become wholly owned subsidiaries of the Company. The date on which the Mergers are consummated is referred to herein as the “ Merger Date ”, and Medco and the subsidiaries of Medco listed on Schedule B-2 hereto are referred to herein as the “ Merger Date Guarantors ”.

On the Merger Date Medco will, and within 60 days following the Merger Date each other Merger Date Guarantor will, enter into (a) a joinder agreement to this Agreement, the form of which is attached as


Schedule H hereto (each, a “ Joinder Agreement ” and collectively, the “ Joinder Agreements ”), (b) a Supplemental Indenture, pursuant to which such Merger Date Guarantor will become a party to the Indenture and (c) a counterpart to each Registration Rights Agreement (as defined below) in the form attached thereto as Exhibit A (each, a “ Registration Rights Joinder ” and, collectively, the “ Registration Rights Joinders ”). Upon the execution and delivery of a Joinder Agreement by a Merger Date Guarantor, the representations, warranties and agreements of such Merger Date Guarantor set forth herein shall become effective pursuant to the terms of such Joinder Agreement, and each such Merger Date Guarantor will, without further action by any person, become a party to this Agreement. References to the “ Guarantors ” refer to (x) prior to the consummation of the Mergers and the execution and delivery of any Joinder Agreements and Supplemental Indentures by any Merger Date Guarantors, the Closing Date Guarantors and (y) following the consummation of the Mergers and the execution and delivery of a Joinder Agreement and Supplemental Indenture by a Merger Date Guarantor, the Closing Date Guarantors and such Merger Date Guarantor.

The Offered Securities will be offered and sold to the Initial Purchasers pursuant to an exemption from the registration requirements of the Securities Act (as defined below). The Offered Securities may be sold by the Initial Purchasers or their respective affiliates pursuant to Regulation S under the Securities Act (“ Regulation S ”) to investors outside of the United States that are not U.S. persons (as defined in Regulation S) and pursuant to Rule 144A under the Securities Act (“ Rule 144A ”) to qualified institutional buyers in the United States or qualified institutional buyers that are U.S. persons.

The holders of each series of the Offered Securities will be entitled to the benefits of a Registration Rights Agreement dated as of the Closing Date among the Company, the Closing Date Guarantors and the Representatives (each, a “ Registration Rights Agreement ” and, collectively, the “ Registration Rights Agreements ”). Following the execution of the Registration Rights Joinders by a Merger Date Guarantor, such Merger Date Guarantor shall be bound by all obligations of the “Guarantors” and the “Company” under the Registration Rights Agreements. Pursuant to each Registration Rights Agreement, the Company and the Guarantors shall use commercially reasonable efforts to cause an exchange offer registration statement to become effective under the Securities Act and to conduct a registered exchange offer for the applicable series of the Offered Securities, or to use their commercially reasonable efforts to cause to become effective a shelf registration statement filed with the Commission registering the resale of the applicable series of the Offered Securities under the Securities Act.

2. Representations and Warranties of the Company and the Guarantors. The Company and each Closing Date Guarantor and, upon execution and delivery of a Joinder Agreement in the case of each of clauses (d), (f), (o), (p), (t), (v), (bb), (cc) and (dd) of this Section 2, each Merger Date Guarantor, jointly and severally represents and warrants to, and agrees with, the Initial Purchasers that:

(a) Offering Circulars; Certain Defined Terms . The Company has prepared or will prepare a Preliminary Offering Circular and a Final Offering Circular.

For purposes of this Agreement:

“Applicable Time ” means 5:00 p.m. (Eastern time) on the date of this Agreement.

Closing Date ” has the meaning defined in Section 3 hereof.

Commission ” means the Securities and Exchange Commission.

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

Final Offering Circular ” means the final offering circular (including any information incorporated by reference therein) relating to the Offered Securities to be offered by the Initial Purchasers that discloses the offering price and other final terms of the Offered Securities and is dated as of the date of this Agreement (even if finalized and issued subsequent to the date of this Agreement).

 

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Free Writing Communication ” means a written communication (as such term is defined in Rule 405) that constitutes an offer to sell or a solicitation of an offer to buy the Offered Securities and is made by means other than the Preliminary Offering Circular or the Final Offering Circular.

General Disclosure Package ” means the Preliminary Offering Circular together with any Issuer Free Writing Communication existing at the Applicable Time and the information which is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule C hereto.

Issuer Free Writing Communication ” means a Free Writing Communication prepared by or on behalf of the Company, used or referred to by the Company or containing a description of the final terms of the Offered Securities or of their offering, in the form retained in the Company’s records.

Order ” means any judgment, order, injunction, decree, writ, stipulation, ruling, determination, award, permit or license of any governmental entity or any arbitrator.

Preliminary Offering Circular ” means the preliminary offering circular (including any information incorporated by reference therein), dated February 6, 2012, relating to the Offered Securities to be offered by the Initial Purchasers.

Rules and Regulations ” means the rules and regulations of the Commission.

Securities Act ” means the Securities Act of 1933, as amended.

Securities Laws ” means, collectively, the Sarbanes-Oxley Act of 2002, as amended (“ Sarbanes-Oxley ”), the Securities Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers” (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and the rules of the NASDAQ Stock Market.

Supplemental Marketing Material ” means any Issuer Free Writing Communication other than any Issuer Free Writing Communication specified in Schedule C hereto. Supplemental Marketing Materials include, but are not limited to, any electronic Bloomberg roadshow slides and the accompanying audio recording.

Trust Indenture Act ” means the Trust Indenture Act of 1939.

Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Securities Act.

(b) Disclosure . As of its date and as of the Closing Date, the Final Offering Circular will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. At the Applicable Time, and as of the Closing Date, neither (i) the General Disclosure Package nor (ii) any individual Supplemental Marketing Material, when considered together with the General Disclosure Package, included, or will include, any untrue statement of a material fact or omitted, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding two sentences do not apply to statements in or omissions from the Preliminary Offering Circular, the Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material in reliance upon and in conformity with written information furnished to the Company by any Initial Purchaser through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Initial Purchaser consists of the information described as such in Section 8(b) hereof. The Annual Reports on Form 10-K most recently filed by each of Express Scripts and Medco with the Commission, as amended by the Form 8-K filed by Express Scripts on October 25, 2011, and all subsequent reports which have been filed by

 

3


Express Scripts or Medco with the Commission and incorporated by reference in the Preliminary Offering Circular or the Final Offering Circular conformed in all material respects to the requirements of the Exchange Act and the Rules and Regulations at the time each such document was filed with the Commission. It is understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (b) with respect to the Annual Report on Form 10-K most recently filed by Medco with the Commission and all subsequent reports which have been filed by Medco with the Commission and incorporated by reference in the Preliminary Offering Circular or the Final Offering Circular are made to the knowledge of the Company and each Closing Date Guarantor.

(c) Good Standing of the Company. The Company (i) has been duly incorporated and is existing and in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package and (ii) is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except in the case of clause (ii) where the failure to so qualify would not result in a material adverse change in the condition, financial or otherwise, or in the earnings, business, affairs or business prospects of either (x) Express Scripts and its subsidiaries, considered as one enterprise, or (y) the Company and its subsidiaries, considered as one enterprise after giving pro forma effect to the Mergers, in each case, whether or not arising in the ordinary course of business (a “ Material Adverse Effect ”).

(d) Guarantor Good Standing . Each Closing Date Guarantor and each Merger Date Guarantor (i) has been duly organized and is existing and in good standing under the laws of the jurisdiction of its organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package and (ii) is duly qualified to do business as a foreign corporation, limited partnership, limited liability company or other entity in good standing, where applicable, in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except in the case of clause (ii) where the failure to so qualify would not have a Material Adverse Effect; and all of the issued and outstanding capital stock of each Closing Date Guarantor and each Merger Date Guarantor has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each Closing Date Guarantor and each Merger Date Guarantor is owned free from liens, encumbrances and defects (it being understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (d) with respect to the Merger Date Guarantors are made to the knowledge of the Company and each Closing Date Guarantor).

(e) Execution and Delivery of Base Indenture; Supplemental Indentures; Registration Rights Agreements; Guarantees; Offered Securities; Exchange Securities . The Base Indenture, the Supplemental Indentures to be dated the Closing Date and the Registration Rights Agreements have been duly authorized by the Company and each Closing Date Guarantor; on the Closing Date (when the Offered Securities are delivered and paid for pursuant to this Agreement), the Base Indenture, the Supplemental Indentures to be dated the Closing Date and the Registration Rights Agreements will have been duly executed and delivered by the Company and each Closing Date Guarantor and will constitute valid and legally binding obligations of the Company and each Closing Date Guarantor, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (and, in the case of the Registration Rights Agreements, except as rights to indemnification and contribution may be limited under applicable law); the Guarantees to be provided by the Closing Date Guarantors have been duly authorized by each Closing Date Guarantor; the Offered Securities have been duly authorized by the Company and will have been duly executed, authenticated and issued (assuming that the Offered Securities have been authenticated in the manner provided in the Indenture by the Trustee) on the Closing Date in accordance with the provisions of the Indenture and, when delivered to and paid for on the Closing Date pursuant to this Agreement, the Offered Securities and the Guarantees of the Closing Date Guarantors will constitute valid and legally binding obligations of the Company and each Closing Date Guarantor, as applicable, enforceable

 

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in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Offered Securities conform to the description of such Offered Securities contained in the General Disclosure Package and will conform to the description of such Offered Securities in the Final Offering Circular; and the Exchange Securities (as defined in each Registration Rights Agreement) and the guarantees thereof by each Closing Date Guarantor have been duly authorized by the Company and each Closing Date Guarantor and, when the Exchange Securities have been duly executed and authenticated in accordance with the provisions of the Indenture and delivered in accordance with the terms of the Registered Exchange Offers (as defined in each Registration Rights Agreement), the Exchange Securities and the guarantees thereof by the Closing Date Guarantors will constitute valid and legally binding obligations of the Company and each Closing Date Guarantor, as applicable, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(f) Execution and Delivery of Joinder Agreements; Supplemental Indentures; Registration Rights Joinders; Guarantees. (i) On the Merger Date, a Supplemental Indenture (including the Guarantees to be provided thereby), a Joinder Agreement and a Registration Rights Joinder with respect to each Registration Rights Agreement will have been duly authorized, executed and delivered by Medco, and such Joinder Agreement, this Agreement, such Supplemental Indenture, the Indenture, each Registration Rights Joinder, each Registration Rights Agreement and the Guarantees of Medco will constitute valid and legally binding obligations of Medco, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (and, in the case of the Registration Rights Agreements, except as rights to indemnification and contribution may be limited by applicable law); (ii) on the date that each other Merger Date Guarantor is required to guarantee the Offered Securities pursuant to the terms of the Indenture, a Supplemental Indenture (including the Guarantees to be provided thereby), a Joinder Agreement and a Registration Rights Joinder with respect to each Registration Rights Agreement will have been duly authorized, executed and delivered by the other Merger Date Guarantors, and such Joinder Agreement, this Agreement, such Supplemental Indenture, the Indenture, each Registration Rights Joinder, each Registration Rights Agreement and the Guarantees of the other Merger Date Guarantors will constitute valid and legally binding obligations of each of the other Merger Date Guarantors, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (and, in the case of the Registration Rights Agreements, except as rights to indemnification and contribution may be limited by applicable law); and (iii) prior to their issuance, the guarantees of the Exchange Securities to be provided by the Merger Date Guarantors will have been duly authorized by each Merger Date Guarantor, and when the Exchange Securities have been executed and authenticated in accordance with the provisions of the Indenture and delivered in accordance with the terms of the Registered Exchange Offer, the guarantees of the Exchange Securities by the Merger Date Guarantors will constitute valid and legally binding obligations of each Merger Date Guarantor, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(g) Trust Indenture Act. On the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act and the Rules and Regulations applicable to an indenture which is qualified thereunder.

(h) No Registration Rights . There are no contracts, agreements or understandings (other than the Registration Rights Agreements, the Registration Rights Joinders and the registration rights agreements and registration rights joinders relating to the 2.750% Senior Notes due 2014, the 3.500% Senior Notes due 2016, the 4.750% Senior Notes due 2021 and the 6.125% Senior Notes due 2041, in each case, issued by the Company on November 21, 2011) between the

 

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Company, any Closing Date Guarantor or any Merger Date Guarantor, on the one hand, and any other person, on the other hand, granting such person the right to require the Company, any Closing Date Guarantor or any Merger Date Guarantor to file a registration statement under the Securities Act with respect to any securities of the Company, any Closing Date Guarantor or any Merger Date Guarantor or to require the Company, any Closing Date Guarantor or any Merger Date Guarantor to include such securities with the securities and guarantees registered pursuant to any Registration Statement (as defined in the Registration Rights Agreements) (it being understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (h) with respect to the Merger Date Guarantors are made to the knowledge of the Company and each Closing Date Guarantor).

(i) Absence of Further Requirements. No consent, approval, authorization, or order of, or filing or registration with, any governmental agency or body or any court is necessary or required for (i) the execution, delivery or performance by the Company or the Guarantors, as applicable, of their obligations under this Agreement, the Joinder Agreements, the Indenture, the Registration Rights Joinders, the Registration Rights Agreements, the Offered Securities, the Guarantees, the Exchange Securities and the guarantees thereof or the consummation by the Company or the Guarantors of the transactions contemplated by this Agreement, the Indenture or the Registration Rights Agreements, except such as have been obtained or made, such as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Offered Securities by the Initial Purchasers and such as may be required under the Securities Act, the Trust Indenture Act and state securities or blue sky laws in connection with the transactions contemplated by the Registration Rights Agreements or (ii) the execution, delivery or performance by the Company, the Closing Date Guarantors or the Merger Date Guarantors of the Merger Agreement or the consummation of the Mergers, except as disclosed in the General Disclosure Package or as set forth in Section 3.4(a) and 4.5(a) of the Merger Agreement (it being understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (i) with respect to the Merger Date Guarantors are made to the knowledge of the Company and each Closing Date Guarantor).

(j) Title to Property . The Company, each Closing Date Guarantor and each Merger Date Guarantor has good and marketable title to all of their respective real properties and good title to their respective personal properties, in each case free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right except (A) as disclosed in the General Disclosure Package or (B) as does not have a Material Adverse Effect and does not interfere with the use made and proposed to be made of such property by the Company and each Guarantor considered as one enterprise; and all of the leases and subleases of the Company and each Guarantor considered as one enterprise, and under which the Company or any Guarantor holds properties described in the General Disclosure Package, are in full force and effect, except such failures to be in full force and effect that would not, individually or in the aggregate, result in a Material Adverse Effect (it being understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (j) with respect to the Merger Date Guarantors are made to the knowledge of the Company and each Closing Date Guarantor).

(k) Absence of Defaults and Conflicts Resulting from Transaction . The execution, delivery and performance by the Company and each of the Guarantors, as applicable, of the Indenture, this Agreement, the Registration Rights Agreements, the Joinder Agreements and the Registration Rights Joinders and compliance with the terms and provisions thereof, the consummation of the transactions herein and therein contemplated (including the use of proceeds from the sale of the Offered Securities, the Mergers and the entry into the Merger Agreement), the issuance and sale of the Offered Securities and the issuance of the Guarantees and compliance with the terms and provisions thereof, and the issuance and sale of the Exchange Securities and the related guarantees and compliance with the terms and provisions thereof will not, in each case, result in a breach or violation of any of the terms and provisions or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Guarantor pursuant to (i) the charter or by-laws or similar organizational documents of the Company or any Guarantor, (ii) any statute, rule, regulation or order of any governmental agency or body or any

 

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court, domestic or foreign, having jurisdiction over the Company or any Guarantor or any of their properties or (iii) any agreement or instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound or to which any of the properties of the Company or any Guarantor is subject, except in the case of clauses (ii) and (iii), for such breaches, defaults, liens, charges or encumbrances that would not, individually or in the aggregate, result in a Material Adverse Effect (it being understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (k) with respect to the Merger Date Guarantors are made to the knowledge of the Company and each Closing Date Guarantor).

(l) Absence of Existing Defaults and Conflicts . None of the Company, any Closing Date Guarantor or any Merger Date Guarantor is in violation of its respective organizational documents or in default (or with the giving of notice or lapse of time would be in default) under any existing obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any of them is subject, except such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect (it being understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (l) with respect to the Merger Date Guarantors are made to the knowledge of the Company and each Closing Date Guarantor).

(m) Authorization of this Agreement . This Agreement has been duly authorized, executed and delivered by the Company and each Closing Date Guarantor.

(n) Possession of Licenses and Permits . The Company, each Closing Date Guarantor and each Merger Date Guarantor (A) possesses, and is in compliance with the terms of, all adequate certificates, authorizations, franchises, licenses and permits (including certificates of need, licenses, pharmacy licenses, Medicare provider numbers, accreditations and other similar documentation or approvals of any local health departments or any governmental authority) (collectively, “ Licenses ”) necessary or material to the conduct of the business now conducted except where the failure to possess any such License would not result in a Material Adverse Effect and (B) have not received any notice of proceedings relating to the revocation or modification of any Licenses that, if determined adversely to the Company or such Guarantor, would individually or in the aggregate have a Material Adverse Effect (it being understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (n) with respect to the Merger Date Guarantors are made to the knowledge of the Company and each Closing Date Guarantor).

(o) Accurate Disclosure . The statements in the General Disclosure Package and the Final Offering Circular under the headings “Description of the Notes”, “Description of Other Indebtedness”, “The Mergers—The Merger Agreement,” “The Mergers—Financing Transactions” and “Material United States Federal Income Tax Considerations to Non-U.S. Holders”, insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.

(p) Absence of Manipulation . None of the Company, any Closing Date Guarantor or any Merger Date Guarantor has taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered Securities (it being understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (p) with respect to the Merger Date Guarantors are made to the knowledge of the Company and each Closing Date Guarantor).

(q) Internal Controls and Compliance with the Sarbanes-Oxley Act . Except as set forth in the General Disclosure Package, (i) Express Scripts, its subsidiaries and its Board of Directors and (ii) Medco, its subsidiaries and its Board of Directors (the “ Medco Board ”) are in compliance in all material respects with Sarbanes-Oxley. Express Scripts and Medco each maintain a system

 

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of internal controls, including, but not limited to, disclosure controls and procedures, internal controls over accounting matters and financial reporting, an internal audit function and legal and regulatory compliance controls (collectively, “ Internal Controls ”) that comply with the Securities Laws and are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. Generally Accepted Accounting Principles and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Express Scripts’ and Medco’s Internal Control over financial reporting is effective, and the Company is not aware of any material weakness in Express Scripts’ or Medco’s Internal Control over financial reporting. Except as disclosed in the Disclosure Package and the Final Offering Circular, since December 31, 2010, there has been no change in Express Scripts’ Internal Control over financial reporting and, since December 25, 2010, there has been no change in Medco’s Internal Control over financial reporting that, in each case, has materially affected, or is reasonably likely to materially affect, Express Scripts’ or Medco’s, as applicable, Internal Control over financial reporting. Express Scripts and Medco maintain “disclosure controls and procedures” (as such term is defined in Rule 13a–15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to Express Scripts and its subsidiaries or Medco and its subsidiaries is made known to the applicable parent entity’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective. It is understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (q) with respect to Medco, its subsidiaries and the Medco Board are made to the knowledge of the Company and each Closing Date Guarantor.

(r) Litigation . Except as disclosed in the General Disclosure Package, there are no pending actions, suits or proceedings (including any inquiries or investigations by or before any court or governmental agency or body, domestic or foreign), involving Express Scripts or any of its subsidiaries or Medco or any of its subsidiaries or any of their respective properties that, if determined adversely to Express Scripts or any of its subsidiaries or Medco or any of its subsidiaries, as applicable, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Company or any Guarantor to perform its obligations, as applicable, under the Indenture (including each Guarantee set forth therein), this Agreement, the Joinder Agreements, the Registration Rights Agreements or the Registration Rights Joinders; and no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are, to the Company’s knowledge, threatened. It is understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (r) with respect to Medco, any of its subsidiaries or any of their respective properties are made to the knowledge of the Company and each Closing Date Guarantor.

(s) Medicare; Medicaid . Except as disclosed in the General Disclosure Package and the Final Offering Circular, none of the Company, any Closing Date Guarantor or any Merger Date Guarantor has received written notice of any, and to the knowledge of the Company or of Express Scripts there are no, material Medicare, Medicaid, or any other managed care recoupment or recoupments of any third-party payor being sought, threatened, requested or claimed against the Company, any Closing Date Guarantor or any Merger Date Guarantor (it being understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (s) with respect to the Merger Date Guarantors are made to the knowledge of the Company and each Closing Date Guarantor).

(t) Financial Statements . The financial statements included or incorporated by reference in the Final Offering Circular and the General Disclosure Package together with the related schedules and notes present fairly in all material respects the financial position of Express Scripts and its consolidated subsidiaries and Medco and its consolidated subsidiaries, in each case, as of

 

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the dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis with respect to Express Scripts and Medco, respectively, and the schedules included or incorporated by reference in the General Disclosure Package present fairly the information required to be stated therein, and the assumptions used in preparing the pro forma financial information included in the Final Offering Circular and the General Disclosure Package provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts. It is understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (t) with respect to the historical financial statements of Medco are made to the knowledge of the Company and each Closing Date Guarantor.

(u) Capitalization . The stockholder’s equity, cash and cash equivalents and long-term indebtedness of Express Scripts as of September 30, 2011 was as set forth in the General Disclosure Package in the column entitled “Actual” under the caption “Capitalization”; and there has not been (i) any subsequent issuance of capital stock of Express Scripts, except for subsequent issuances, if any, pursuant to any outstanding securities, benefit or compensation plans disclosed in the General Disclosure Package or (ii) any subsequent increase, if any, in the outstanding principal amount of long-term indebtedness, except as otherwise disclosed in the General Disclosure Package or under instruments outstanding at September 30, 2011. The long-term indebtedness of Medco as of September 30, 2011 to be assumed in the Mergers was as set forth in the General Disclosure Package in the column entitled “Pro Forma for the Mergers and the Related Financing Transactions” under the caption “Capitalization” (it being understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (u) with respect to the long-term indebtedness of Medco are made to the knowledge of the Company and each Closing Date Guarantor).

(v) No Material Adverse Change in Business . Except as disclosed in the General Disclosure Package, since the end of the period covered by the latest financial statements included or incorporated by reference in the General Disclosure Package (i) there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business or properties of either (x) Express Scripts and its subsidiaries, taken as a whole, or (y) to the knowledge of the Company and the Closing Date Guarantors, the Company and its subsidiaries, taken as a whole after giving pro forma effect to the Mergers, that is material and adverse, (ii) except as disclosed in or contemplated by the General Disclosure Package, there has been no dividend or distribution of any kind declared, paid or made by Express Scripts or, to the knowledge of the Company, Medco on any class of its capital stock and (iii) except as disclosed in or contemplated by the General Disclosure Package, there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of Express Scripts or any of its subsidiaries or, to the knowledge of the Company, Medco or any of its subsidiaries.

(w) Investment Company Act. Each of the Company and Express Scripts is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the General Disclosure Package, will not be an “investment company” as defined in the Investment Company Act of 1940 (the “ Investment Company Act ”).

(x) Anti-Bribery Laws. None of Express Scripts or any of its subsidiaries or, to the knowledge of the Company and each Closing Date Guarantor, Medco or any of its subsidiaries or any director, officer, agent, employee or affiliate of Express Scripts or any of its subsidiaries or, to the knowledge of the Company and each Closing Date Guarantor, Medco or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “ FCPA ”), including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization

 

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of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and Express Scripts and its subsidiaries and affiliates and, to the knowledge of the Company and each Closing Date Guarantor, Medco and its subsidiaries and affiliates, have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

(y) Money Laundering Laws. The operations of Express Scripts and its subsidiaries and, to the knowledge of the Company and each Closing Date Guarantor, Medco and its subsidiaries are and have been conducted at all times in compliance with applicable financial record keeping and reporting requirements relating to money laundering applicable to Express Scripts and its subsidiaries and Medco and its subsidiaries, as applicable, and, so far as the Company is aware, any related or similar statutes, rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Money Laundering Laws ”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving Express Scripts or any of its subsidiaries or, to the knowledge of the Company and each Closing Date Guarantor, Medco or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

(z) OFAC . None of Express Scripts, any of its subsidiaries or any director, officer, agent, employee or affiliate of Express Scripts or any of its subsidiaries or, to the knowledge of the Company and each Closing Date Guarantor, Medco, any of its subsidiaries or any director, officer, agent, employee or affiliate of Medco or any of its subsidiaries is currently subject to any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, Express Scripts, any joint venture partner or any other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC or in any other manner that will result in a violation of any U.S. sanctions administered by OFAC.

(aa) Class of Securities Not Listed. No securities of the same class (within the meaning of Rule 144A(d)(3)) as the Offered Securities are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system.

(bb) No Registration . Assuming compliance by the Initial Purchasers with their representations and warranties in Section 4 of this Agreement, the offer and sale of the Offered Securities in the manner contemplated by this Agreement will be exempt from the registration requirements of the Securities Act by reason of Section 4(2) thereof and Regulation S; and it is not necessary to qualify an indenture in respect of the Offered Securities under the Trust Indenture Act.

(cc) No Issuer Free Writing Communications . None of the Company, any Closing Date Guarantor or any Merger Date Guarantor has made, and, without the prior consent of the Representatives, none of the Company, any Closing Date Guarantor or any Merger Date Guarantor will make, any offer relating to the Offered Securities that would constitute an Issuer Free Writing Communication.

(dd) No General Solicitation; No Directed Selling Efforts. None of the Company, any Closing Date Guarantor, any Merger Date Guarantor, any of their respective affiliates or any person acting on its or their behalf (other than the Initial Purchasers, as to whom no representation is made) (i) has, within the six-month period prior to the date hereof, offered or sold in the United States or to any U.S. person (as such terms are defined in Regulation S) the Offered Securities or any security of the same class or series as the Offered Securities (other than the 2.750% Senior Notes due 2014, the 3.500% Senior Notes due 2016, the 4.750% Senior Notes due 2021 and the

 

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6.125% Senior Notes due 2041, in each case, issued by the Company on November 21, 2011) or (ii) has offered or will offer or sell the Offered Securities (A) in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) or (B) with respect to any such securities sold in reliance on Rule 903 of Regulation S, by means of any directed selling efforts within the meaning of Rule 902(c) of Regulation S. The Company, each Closing Date Guarantor, each Merger Date Guarantor, their respective affiliates and any person acting on its or their behalf (other than the Initial Purchasers, as to whom no representation is made) have complied and will comply with the offering restrictions requirement of Regulation S. None of the Company, any Closing Date Guarantor or any Merger Date Guarantor will enter into any contractual arrangement with respect to the distribution of the Offered Securities except for this Agreement. It is understood that the representations and warranties of the Company and the Closing Date Guarantors in this paragraph (dd) with respect to the Merger Date Guarantors are made to the knowledge of the Company and each Closing Date Guarantor.

3. Purchase, Sale and Delivery of Offered Securities . On the basis of the representations, warranties and agreements herein contained and subject to the terms and conditions set forth herein, the Company agrees to sell to the Initial Purchasers, and each of the Initial Purchasers agrees, severally and not jointly, to purchase from the Company, at a purchase price of (i) 99.108% of the principal amount thereof of the 2015 Notes, plus accrued interest from February 9, 2012 to the Closing Date, the respective principal amounts of the 2015 Notes set forth opposite the names of the Initial Purchasers in Schedule A hereto, (ii) 98.425% of the principal amount thereof of the 2017 Notes, plus accrued interest from February 9, 2012 to the Closing Date, the respective principal amounts of the 2017 Notes set forth opposite the names of the Initial Purchasers in Schedule A hereto and (iii) 97.197% of the principal amount thereof of the 2022 Notes, plus accrued interest from February 9, 2012 to the Closing Date, the respective principal amounts of the 2022 Notes set forth opposite the names of the Initial Purchasers in Schedule A hereto.

The Company will deliver against payment of the respective purchase prices the Offered Securities to be purchased by each Initial Purchaser hereunder and to be offered and sold by the Initial Purchasers in reliance on Regulation S (the “ Regulation S Securities ”) in the form of one or more permanent global securities in registered form without interest coupons (the “ Offered Regulation S Global Securities ”) which will be deposited with the Trustee as custodian for The Depository Trust Company (“ DTC ”) for the respective accounts of the DTC participants for Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System (“ Euroclear ”), and Clearstream Banking, société anonyme (“ Clearstream, Luxembourg ”), and as registered in the name of Cede & Co., as nominee for DTC. The Company will deliver against payment of the respective purchase prices the Offered Securities to be purchased by each Initial Purchaser hereunder and to be offered and sold by each Initial Purchaser in reliance on Rule 144A (the “ 144A Securities ”) in the form of one or more permanent global securities in definitive form without interest coupons (the “ Restricted Global Securities ”) deposited with the Trustee as custodian for DTC and registered in the name of Cede & Co., as nominee for DTC. The Regulation S Global Securities and the Restricted Global Securities of each series of Offered Securities shall be assigned separate CUSIP numbers. The Restricted Global Securities shall include the legend regarding restrictions on transfer set forth under “Transfer Restrictions” in the Final Offering Circular. Until the termination of the distribution compliance period (as defined in Regulation S) with respect to the offering of the Offered Securities, interests in the Regulation S Global Securities may only be held by the DTC participants for Euroclear and Clearstream, Luxembourg. Interests in any permanent global Securities will be held only in book-entry form through Euroclear, Clearstream, Luxembourg or DTC, as the case may be, except in the limited circumstances described in the Final Offering Circular.

Payment for the Offered Securities shall be made by the Initial Purchasers in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representatives drawn to the order of the Company at the office of Cravath, Swaine & Moore LLP, at 10:00 A.M., New York time, on February 9, 2012, or at such other time not later than seven full business days thereafter as the Representatives and the Company determine, such time being herein referred to as the “ Closing Date ”, against delivery to the Trustee as custodian for DTC of (i) the Regulation S Global Securities representing all of the Regulation S Securities for the respective accounts of the DTC participants for Euroclear and Clearstream, Luxembourg and (ii) the Restricted Global Securities representing all of the offered 144A Securities. The Regulation S Global Securities and the Restricted Global Securities will be made available for checking at the above office of Cravath, Swaine & Moore LLP at least 24 hours prior to the Closing Date.

 

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4. Representations by Initial Purchasers; Resale by Initial Purchasers. (a) Each Initial Purchaser severally represents and warrants to the Company and the Guarantors that it is an “accredited investor” within the meaning of Regulation D under the Securities Act.

(b) Each Initial Purchaser severally acknowledges that the Offered Securities and the Guarantees have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S or pursuant to an exemption from the registration requirements of the Securities Act. Each Initial Purchaser severally represents and agrees that it has offered and sold the Offered Securities and the Guarantees, and will offer and sell the Offered Securities and Guarantees (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly, neither such Initial Purchaser nor its affiliates, nor any persons acting on its or their behalf, have engaged or will engage in any directed selling efforts with respect to the Offered Securities, and such Initial Purchaser, its affiliates and all persons acting on its or their behalf have complied with and will comply with the offering restrictions requirement of Regulation S and Rule 144A. Each Initial Purchaser severally agrees that, at or prior to confirmation of sale of the Offered Securities, other than a sale pursuant to Rule 144A, such Initial Purchaser will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases the Offered Securities from it during the restricted period a confirmation or notice to substantially the following effect:

“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S.”

Terms used in this subsection (b) have the meanings given to them by Regulation S.

(c) Each Initial Purchaser severally agrees that it and each of its affiliates will not offer or sell the Offered Securities in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c), including, but not limited to, (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Each Initial Purchaser severally agrees, with respect to resales made in reliance on Rule 144A of any Offered Securities, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Offered Securities has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.

(d) In relation to each Member State of the European Economic Area that has implemented the Prospectus Directive (each, a “ Relevant Member State ”), each Initial Purchaser severally represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “ Relevant Implementation Date ”) it has not made and will not make an offer of Offered Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Offered Securities that has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Offered Securities to the public in that Relevant Member State at any time,

 

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(i) to legal entities that are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;

(ii) to any legal entity that has two or more of (A) an average of at least 250 or, if the Relevant Member State has implemented the relevant provisions of the 2010 PD Amending Directive, 150 employees during the last financial year; (B) a total balance sheet of more than €43,000,000 and (C) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;

(iii) to fewer than 100 or, if the Relevant Member State has implemented the relevant provisions of the 2010 PD Amending Directive, 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the Representatives for any such offer; or

(iv) in any other circumstances that do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive.

For the purposes of this provision, the expression an “offer of Offered Securities to the public” in relation to any Offered Security in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Offered Securities, as the same expression may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, and the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in each Relevant Member State, and “2010 PD Amending Directive” means Directive 2010/73/EU.

(e) Each Initial Purchaser severally represents, warrants and agrees as follows:

(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act of 2000 (the “ FSMA ”)) received by it in connection with the issue or sale of the Offered Securities to persons who have professional experience in matters relating to investments falling within Article 19(5) of the FSMA Order 2005 or in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantors; and

(ii) it has complied with, and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Offered Securities in, from or otherwise involving the United Kingdom.

5. Certain Agreements of the Company . The Company and each of the Closing Date Guarantors and, upon execution and delivery of a Joinder Agreement, each of the Merger Date Guarantors covenants and agrees with the several Initial Purchasers that:

(a) Amendments and Supplements to Offering Circulars . Prior to the completion of the sale of the Offered Securities, the Company will promptly advise the Representatives of any proposal to amend or supplement the Preliminary Offering Circular or Final Offering Circular and will offer the Representatives a reasonable opportunity to comment on such amendment or supplement. If, at any time prior to the completion of the resale of the Offered Securities by the Initial Purchasers, any event or development occurs as a result of which a part of the General Disclosure Package, any Supplemental Marketing Material, the Preliminary Offering Circular or the Final Offering Circular, if republished immediately following such event or development, would include an untrue statement of a material fact or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the

 

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General Disclosure Package, any Supplemental Marketing Material, the Preliminary Offering Circular or the Final Offering Circular to comply with any applicable law, the Company will promptly notify the Representatives of such event or development and will promptly prepare and furnish, at its own expense, to the Initial Purchasers and the dealers and any other dealers upon request of the Representatives, an amendment or supplement which will correct such statement or omission or effect such compliance. Neither the Representatives’ consent to, nor the Initial Purchasers’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof.

(b) Furnishing of Offering Circulars . The Company will furnish to the Representatives copies of the Preliminary Offering Circular, any other document comprising a part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements to such documents and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representatives reasonably request.

(c) Blue Sky Qualifications . The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Initial Purchasers; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Offered Securities, in any jurisdiction where it is not now so subject.

(d) [Reserved.]

(e) Transfer Restrictions. During the period of one year after the Closing Date, the Company will, upon request, furnish to the Representatives, each of the other Initial Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.

(f) No Resales by Affiliates. During the period of one year after the Closing Date, the Company will not and will use its commercially reasonable efforts to not permit any of its affiliates (as defined in Rule 144) to, resell any of the Offered Securities which constitute “restricted securities” under Rule 144A that have been reacquired by them.

(g) Investment Company. During the period of one year after the Closing Date, the Company will not be or become an open-ended investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.

(h) Payment of Expenses . The Company will pay all expenses incidental to the performance of the obligations of the Company and the Guarantors under this Agreement and the Registration Rights Agreements, including but not limited to any expenses (including reasonable fees and disbursements of counsel to the Initial Purchasers) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the preparation and printing of circulars relating thereto, any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities, costs and expenses relating to investor presentations or any “road show” in connection with the offering and sale of the Offered Securities including, without limitation, any travel expenses of the Company’s and the Guarantors’ officers and employees and any other expenses of the Company and the Guarantors, including the chartering of airplanes, fees and expenses in connection with the issuance, offer or sale of the Offered Securities and the Exchange Securities, and expenses incurred in preparing, printing and distributing this Agreement, the Offered Securities, the Exchange Securities, the Indenture, the Registration Rights Agreements, any Supplemental Marketing Materials, the General Disclosure Package and the Final Offering Circular (including any amendments and supplements thereto) to the Initial Purchasers.

 

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(i) Use of Proceeds . The Company will use the net proceeds received in connection with this offering in the manner described in the “Use of Proceeds” section of the General Disclosure Package and, except as disclosed in the General Disclosure Package, the Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Initial Purchaser.

(j) Absence of Manipulation . Neither the Company nor any Closing Date Guarantor will take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Offered Securities.

(k) Restriction on Sale of Securities . Neither the Company nor any Closing Date Guarantor will offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission (except pursuant to the Registration Rights Agreements) a registration statement under the Securities Act relating to United States dollar-denominated debt securities issued or guaranteed by the Company or any Closing Date Guarantor and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period beginning on the date hereof and ending on the Closing Date. None of the Company, Express Scripts or their respective subsidiaries will at any time, directly or indirectly, take any action with respect to any securities under circumstances where the offer, sale, pledge, contract or disposition thereof would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.

(l) Joinder Agreement, Supplemental Indenture and Registration Rights Joinder. On the Merger Date, the Company shall cause Medco to execute and deliver a Joinder Agreement, a Supplemental Indenture and a Registration Rights Joinder in respect of each Registration Rights Agreement and shall deliver such executed counterparts to the Initial Purchasers. On the date that each other Merger Date Guarantor is required to guarantee the Offered Securities pursuant to the terms of the Indenture, the Company shall cause each such other Merger Date Guarantor to execute and deliver a Joinder Agreement, a Supplemental Indenture and a Registration Rights Joinder in respect of each Registration Rights Agreement and shall deliver such executed counterparts to the Initial Purchasers.

6. Free Writing Communications . (a)  Issuer Free Writing Communications . The Company and each Closing Date Guarantor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Initial Purchaser represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Communication.

(b) Term Sheets . The Company consents to the use by any Initial Purchaser of a Free Writing Communication that (i) contains only (x) information describing the preliminary terms of the Offered Securities or their offering or (y) information that describes the final terms of the Offered Securities or their offering and that is included in the pricing term sheet substantially in the form of Annex A hereto, or (ii) does not contain any material information about the Company, the Guarantors or any of their securities that was provided by or on behalf of the Company or any Guarantor.

7. Conditions of the Obligations of the Initial Purchasers . The obligations of the Initial Purchasers to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties of the Company and the Closing Date Guarantors herein (as though made on the Closing Date), to the accuracy of the statements of the individuals made pursuant to the provisions hereof, to the performance by the Company and each Closing Date Guarantor of its obligations hereunder and to the following additional conditions precedent:

(a) Express Scripts Accountants’ Comfort Letter . The Initial Purchasers shall have received letters, dated, respectively, the date hereof on the General Disclosure Package and the Closing Date on the Final Offering Circular, of PricewaterhouseCoopers LLP, confirming that they are a registered public accounting firm and independent public accountants with respect to the Express Scripts, within the meaning of the Securities Laws and substantially in the form of Schedule D-1 hereto (except that, in any letter dated the Closing Date, the specified date referred to in Schedule D-1 hereto shall be a date no more than three days prior to the Closing Date).

 

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(b) Medco Accountants’ Comfort Letter. The Initial Purchasers shall have received letters, dated, respectively, the date hereof on the General Disclosure Package and the Closing Date on the Final Offering Circular, of PricewaterhouseCoopers LLP, confirming that they are a registered public accounting firm and independent public accountants with respect to Medco, within the meaning of the Securities Laws and substantially in the form of Schedule D-2 hereto (except that, in any letter dated the Closing Date, the specified date referred to in Schedule D-2 hereto shall be a date no more than four days prior to the Closing Date).

(c) No Material Adverse Change . Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business or properties of either (x) Express Scripts and its subsidiaries taken as a whole or (y) the Company and its subsidiaries taken as a whole after giving pro forma effect to the Mergers, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company, Express Scripts or Medco by any “nationally recognized statistical rating organization” (as defined under Section 3 of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company, Express Scripts or Medco (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the judgment of the Representatives, impractical or inadvisable to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the NASDAQ Stock Market, or any setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of trading of any securities of Express Scripts or Medco on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities, payment, or clearance services in the United States or any other country where such securities are listed; or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.

(d) Opinion of Counsel for Company and the Closing Date Guarantors . The Initial Purchasers shall have received opinions and a negative assurance letter, in each case dated the Closing Date, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Company and the Closing Date Guarantors, substantially in the form set forth in Schedules E-1, E-2 and E-3 hereto.

(e) Opinion of General Counsel. The Initial Purchasers shall have received an opinion, dated the Closing Date, of Keith Ebling, General Counsel of Express Scripts substantially in the form set forth in Schedule F hereto.

(f) Opinions of Local Counsel for the Closing Date Guarantors . The Initial Purchasers shall have received opinions, dated the Closing Date, of local counsel for the Closing Date Guarantors, substantially in the form set forth in Schedule G hereto.

 

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(g) Opinion of Regulatory Counsel. The Initial Purchasers shall have received an opinion, dated the Closing Date, of Holland & Knight LLP, special regulatory counsel of Express Scripts, to the effect the statements in the General Disclosure Package and Final Offering Circular (including the documents incorporated by reference therein) under any headings relating to regulatory disclosure, insofar as they constitute summaries of legal documents, legal proceedings or refer to matters of law or legal conclusions, are accurate in all material respects.

(h) Opinion of Counsel for Initial Purchasers. The Initial Purchasers shall have received from Cravath, Swaine & Moore LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to such matters as the Initial Purchasers may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.

(i) Officer’s Certificate . The Initial Purchasers shall have received a certificate, dated the Closing Date, of an executive officer of each of the Company and Express Scripts and a principal financial or accounting officer of each of the Company and Express Scripts in which such officers shall state that: the representations and warranties of the Company and the Closing Date Guarantors in this Agreement are true and correct; the Company and the Closing Date Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, subsequent to the date of the most recent financial statements included or incorporated by reference in the General Disclosure Package, there has been no Material Adverse Effect except as set forth in the General Disclosure Package or as described in such certificate.

(j) Indenture and Registration Rights Agreements . The Base Indenture, the Supplemental Indentures to be dated the Closing Date and the Registration Rights Agreements shall have been duly executed and delivered, and the Initial Purchasers shall have received copies, conformed and executed thereof.

The Company will furnish the Initial Purchasers with such conformed copies of such opinions, certificates, letters and documents as the Initial Purchasers reasonably request. The Representatives may in their sole discretion waive on behalf of the Initial Purchasers compliance with any conditions to the obligations of the Initial Purchasers hereunder.

8. Indemnification and Contribution . (a)  Indemnification of the Initial Purchasers . Each of the Company and each Closing Date Guarantor, as of the date hereof, and each Merger Date Guarantor, upon execution and delivery of a Joinder Agreement, agree and undertake to the Initial Purchasers that they will, jointly and severally, indemnify and hold harmless each Initial Purchaser, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “ Indemnified Party ”), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Preliminary Offering Circular or Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication (including with limitation, any Supplemental Marketing Material) or the General Disclosure Package, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Company and the Guarantors will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information

 

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furnished to the Company by any Initial Purchaser through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Initial Purchaser consists of the information described as such in subsection (b) below.

(b) Indemnification of the Company . Each Initial Purchaser will severally and not jointly indemnify and hold harmless the Company and each of the Closing Date Guarantors, as of the date hereof, and each Merger Date Guarantor, upon execution and delivery of a Joinder Agreement, each of their respective directors and each of their respective officers and each person, if any, who controls the Company or any Closing Date Guarantor, as of the date hereof, or any Merger Date Guarantor, upon execution and delivery of a Joinder Agreement, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “ Purchaser Indemnified Party ”), against any and all losses, claims, damages or liabilities to which such Purchaser Indemnified Party may become subject, under the Securities Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any part of the Preliminary Offering Circular or the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing Communication or the General Disclosure Package, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Initial Purchaser through the Representatives specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Purchaser Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Purchaser Indemnified Party is a party thereto), whether threatened or commenced, based upon any such untrue statement or omission, or any such alleged untrue statement or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by any Initial Purchaser consists of the following information in the Preliminary Offering Circular and the Final Offering Circular furnished on behalf of each Initial Purchaser: under the caption “Plan of Distribution”, the third, twelfth and thirteenth paragraphs and the second sentence of the eleventh paragraph.

(c) Actions against Parties; Notification . Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.

 

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(d) Contribution . If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Initial Purchasers on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors on the one hand and the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and the Initial Purchasers on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and the Guarantors bear to the total discounts and commissions received by the Initial Purchasers. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or any Guarantor or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Securities purchased by it were resold exceeds the amount of any damages which such Initial Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers’ obligations in this subsection (d) to contribute are several in proportion to their respective purchase obligations and not joint. The Company, the Guarantors and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8(d).

9. Default of Initial Purchasers . If any Initial Purchaser or Initial Purchasers default in their obligations to purchase Offered Securities hereunder on the Closing Date and the aggregate principal amount of Offered Securities that such defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase does not exceed 10% of the total principal amount of Offered Securities that the Initial Purchasers are obligated to purchase on the Closing Date, the Representatives may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Initial Purchasers, but if no such arrangements are made by the Closing Date, the non-defaulting Initial Purchasers shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities that such defaulting Initial Purchasers agreed but failed to purchase on the Closing Date. If any Initial Purchaser or Initial Purchasers so default and the aggregate principal amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total principal amount of Offered Securities that the Initial Purchasers are obligated to purchase on the Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of the Offered Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Initial Purchaser or the Company, except as provided in Section 10. As used in this Agreement, the term “Initial Purchaser” includes any person substituted for a Initial Purchaser under this Section. Nothing herein will relieve a defaulting Initial Purchaser from liability for its default.

 

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10. Survival of Certain Representations and Obligations . The respective indemnities, agreements, representations, warranties and other statements of the Company, the Closing Date Guarantors, the Merger Date Guarantors and their respective officers and of the Initial Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Initial Purchaser, the Company, the Closing Date Guarantors, the Merger Date Guarantors or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Securities. If the purchase of the Offered Securities by the Initial Purchasers is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 9 hereof, the Company and the Guarantors will reimburse the Initial Purchasers for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities, and the respective obligations of the Company, each Closing Date Guarantor, each Merger Date Guarantor and the Initial Purchasers pursuant to Section 8 hereof shall remain in effect.

11. Notices . All communications hereunder will be in writing and, if sent to the Initial Purchasers, will be mailed, delivered or telegraphed and confirmed to Citigroup Global Markets Inc., 388 Greenwich Street, New York, N.Y. 10013, Attention: General Counsel and Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it care of Express Scripts, Inc., One Express Way, St. Louis, MO 63121, Attention: Keith Ebling, General Counsel; provided, however, that any notice to an Initial Purchaser pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Initial Purchaser.

12. Successors . This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder.

13. Representation of Initial Purchasers . The Representatives will act for the several Initial Purchasers in connection with this purchase, and any action under this Agreement taken by the Representatives jointly will be binding upon all the Initial Purchasers.

14. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.

15. Absence of Fiduciary Relationship. The Company and each Closing Date Guarantor, as of the date hereof, and each Merger Date Guarantor, upon execution and delivery of a Joinder Agreement, acknowledge and agree that:

(a) No Other Relationship . The Representatives have been retained solely to act as initial purchasers in connection with the initial purchase, offering and resale of the Offered Securities and that no fiduciary, advisory or agency relationship between the Company and the Guarantors on the one hand and the Representatives on the other hand has been created in respect of any of the transactions contemplated by this Agreement or the Preliminary Offering Circular or the Final Offering Circular, irrespective of whether the Representatives have advised or are advising the Company and the Guarantors on other matters;

(b) Arms’ Length Negotiations . The prices of the Offered Securities set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Representatives and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;

(c) Absence of Obligation to Disclose . The Company and the Guarantors have been advised that the Representatives and their affiliates are engaged in a broad range of transactions

 

20


which may involve interests that differ from those of the Company and the Guarantors and that the Representatives have no obligation to disclose such interests and transactions to the Company and the Guarantors by virtue of any fiduciary, advisory or agency relationship; and

(d) Waiver . The Company and the Guarantors waive, to the fullest extent permitted by law, any claims they may have against the Representatives for breach of fiduciary duty or alleged breach of fiduciary duty and agree that the Representatives shall have no liability (whether direct or indirect) to the Company or any Guarantor in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company or any Guarantor, including stockholders, employees or creditors of the Company.

16. Applicable La w . This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to principles of conflicts of laws.

The Company and each Guarantor hereby submit to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company and each Guarantor irrevocably and unconditionally waive any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the Joinder Agreements or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.

 

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If the foregoing is in accordance with the Representatives’ understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between the Company and each Guarantor and the several Initial Purchasers in accordance with its terms.

 

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Very truly yours,
ARISTOTLE HOLDING, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:  

Chairman, Chief Executive Officer

and President

EXPRESS SCRIPTS, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:  

Chairman, Chief Executive Officer

and President

AIRPORT HOLDINGS, LLC
ESI REALTY, LLC
By: Express Scripts, Inc., as sole Member
By:  

/s/ George Paz

  Name:   George Paz
  Title:  

Chairman, Chief Executive Officer

and President

[Purchase Agreement]

 

23


BYFIELD DRUG, INC.

CARE CONTINUUM, INC.

CFI OF NEW JERSEY, INC.

CHESAPEAKE INFUSION, INC.

CONNECTYOURCARE COMPANY LLC

CONNECTYOURCARE, LLC

CURASCRIPT PBM SERVICES INC.

DIVERSIFIED PHARMACEUTICAL SERVICES, INC.

ESI ACQUISITION, INC.

ESI CLAIMS, INC.

ESI ENTERPRISES, LLC

ESI MAIL ORDER PROCESSING, INC.

EXPRESS SCRIPTS CANADA HOLDING CO.

EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC

EXPRESS SCRIPTS SERVICES COMPANY

FRECO, INC.

FREEDOM SERVICE COMPANY, LLC

HEALTHBRIDGE, INC.

HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC.

iBIOLOGIC, INC.

IVTX, INC.

LYNNFIELD COMPOUNDING CENTER, INC.

LYNNFIELD DRUG, INC.

MATRIX GPO LLC

NATIONAL PRESCRIPTION ADMINISTRATORS, INC.

PRIORITY HEALTHCARE CORPORATION

PRIORITY HEALTHCARE CORPORATION WEST

PRIORITY HEALTHCARE DISTRIBUTION, INC.

PRIORITY HEALTHCARE PHARMACY, INC.

PRIORITYHEALTHCARE.COM, INC.

SINUSPHARMACY, INC.

SPECIALTY INFUSION PHARMACY, INC.

SPECTRACARE, INC.

SPECTRACARE HEALTH CARE VENTURES, INC.

SPECTRACARE INFUSION PHARMACY, INC.

VALUE HEALTH, INC.

YOURPHARMACY.COM, INC.

By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President

[Purchase Agreement]

 

24


 

CURASCRIPT, INC.

ESI MAIL PHARMACY SERVICE, INC.

EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.

EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.

MOORESVILLE ON-SITE PHARMACY, LLC

By:  

/s/ Patrick McNamee

  Name:   Patrick McNamee
  Title:   President

[Purchase Agreement]

 

25


ESI-GP HOLDINGS, INC.
ESI RESOURCES, INC.
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President
ESI PARTNERSHIP
By: Express Scripts, Inc., as Partner
By:  

/s/ Martin P. Akins

  Name:   Martin P. Akins
  Title:   Vice President and Deputy General Counsel
By: ESI-GP Holdings, Inc., as Partner
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President

[Purchase Agreement]

 

26


SPECTRACARE OF INDIANA

By: Spectracare, Inc., as Partner

By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
By: Care Continuum, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
EXPRESS SCRIPTS MSA, LLC
EXPRESS SCRIPTS WC, INC.
By:  

/s/ Edward Ignaczak

  Name:   Edward Ignaczak
  Title:   President

EXPRESS SCRIPTS SENIOR CARE, INC.

EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC.

By:  

/s/ George Paz

  Name:   George Paz
  Title:   President

EXPRESS SCRIPTS CANADA HOLDING, LLC

By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President

[Purchase Agreement]

 

27


 

The foregoing Purchase Agreement is hereby confirmed and accepted as of the date first above written.

Acting on behalf of themselves and as the Representatives of the several Initial Purchasers

CREDIT SUISSE SECURITIES (USA) LLC

By:  

/s/ Michael Muntner

  Name:   Michael Muntner
  Title:   Managing Director

[Purchase Agreement]

 

28


 

CITIGROUP GLOBAL MARKETS INC.
By:  

/s/ Jack D. McSpadden, Jr.

  Name:   Jack D. McSpadden, Jr.
  Title:   Managing Director

[Purchase Agreement]

 

29

Exhibit 10.2

EXECUTION COPY

Aristotle Holding, Inc.

$1,000,000,000 2.100% Senior Notes Due 2015

REGISTRATION RIGHTS AGREEMENT

February 9, 2012

C ITIGROUP G LOBAL M ARKETS I NC .,

388 Greenwich Street,

New York, N.Y. 10013

C REDIT S UISSE S ECURITIES (USA) LLC,

Eleven Madison Avenue,

New York, N.Y. 10010-3629

As representatives (the “ Representatives ”) of the Initial Purchasers

Dear Sirs:

Aristotle Holding, Inc., a Delaware corporation (the “ Issuer ”), proposes to issue and sell, upon the terms set forth in a purchase agreement dated February 6, 2012 (as amended prior to the date hereof, the “ Purchase Agreement ”), to the several initial purchasers named in Schedule A to the Purchase Agreement (the “ Initial Purchasers ”), $1,000,000,000 aggregate principal amount of its 2.100% Senior Notes due 2015 (the “ Initial Securities ”) to be unconditionally guaranteed (the “ Guaranties ”) by the Guarantors (as defined below) and any other entity that becomes a guarantor of the Initial Securities following the Closing Date pursuant to the terms of the Indenture (as defined below). As used herein, (i) prior to the consummation of the Mergers and the execution and delivery of any Joinder Agreements and Supplemental Indentures (as defined below) by the Merger Date Guarantors, “Guarantors” means the Closing Date Guarantors and, following the consummation of the Mergers and the execution and delivery of each Joinder Agreement and Supplemental Indenture by a Merger Date Guarantor, “Guarantors” means the Closing Date Guarantors and the Merger Date Guarantors party thereto, (ii) the “Company” refers to the Issuer together with the Guarantors and (iii) capitalized terms used but not defined herein have the meanings ascribed to such terms in the Purchase Agreement.

The Initial Securities will be issued pursuant to an indenture, dated as of November 21, 2011, and supplemented by a supplemental indenture (a “ Supplemental Indenture ”) dated as of February 9, 2012, among the Issuer, the Closing Date Guarantors and Wells Fargo Bank, National Association, as Trustee (as supplemented by the Supplemental Indenture entered into on February 9, 2012, and as may be supplemented from time to time thereafter, the “ Indenture ”). On the Merger Date Medco will, and within 60 days following the Merger Date each other Merger Date Guarantor will, enter into (i) a Supplemental Indenture, pursuant to which each such Merger Date Guarantor will unconditionally guarantee the Initial Securities and (ii) a counterpart to this Agreement in the form attached hereto as Exhibit A (each, a “ Counterpart ”). As an inducement to the Initial Purchasers, the Company agrees with the Initial Purchasers, for the benefit of the holders of the Initial Securities (including, without limitation, the Initial Purchasers), the Exchange Securities (as defined below) and the Private Exchange Securities (as defined below) (collectively, the “ Holders ”), as follows:

1. Assumption and Adoption of this Agreement by the Merger Date Guarantors. On the Merger Date, Medco will execute a Counterpart, and on the date that each other Merger Date Guarantor is required to guarantee the Initial Securities pursuant to the terms of the Indenture, each such other Merger Date Guarantor will execute a Counterpart.

2. Registered Exchange Offer . The Company shall, at its own cost, prepare and file with the Securities and Exchange Commission (the “ Commission ”) a registration statement (the “ Exchange Offer


Registration Statement ”) on an appropriate form under the Securities Act of 1933, as amended (the “ Securities Act ”), with respect to a proposed offer (the “ Registered Exchange Offer ”) to the Holders of Transfer Restricted Securities (as defined in Section 7 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities (the “ Exchange Securities ”) of the Issuer issued under the Indenture, guaranteed by the Guarantors and otherwise identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities, the special mandatory redemption relating to the Initial Securities, the provisions relating to the matters described in Section 7 hereof and any other provisions of the Indentures that are no longer applicable to any party thereto as a result of the consummation of the Mergers) that would be registered under the Securities Act. The Company shall (i) use commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act within 280 days (or if the 280th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “ Issue Date ”); provided that such date shall not be earlier than the 60th day following the consummation of the Mergers (the later of the date that is the 280th day after the date of issuance of the Initial Securities and the 60th day after the consummation of the Mergers, the “ Effectiveness Deadline ”), (ii) as soon as practicable after the effectiveness of the Exchange Offer Registration Statement, offer the Exchange Securities in exchange for the Initial Securities and complete such Registered Exchange Offer not later than 60 days after such Exchange Offer Registration Statement becomes effective (or if such 60th day is not a business day, the next succeeding business day) and (iii) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “ Exchange Offer Registration Period ”). For the avoidance of doubt, such Exchange Offer Registration Statement may include debt securities of the Company other than the Initial Securities.

If the Company effects the Registered Exchange Offer, the Company will be entitled to close the Registered Exchange Offer in not less than 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer.

Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that at the time of the commencement of the Registered Exchange Offer such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States.

The Company acknowledges that, pursuant to current interpretations by the Commission’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an “ Exchanging Dealer ”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section, and (c) Annex C hereto in the “Plan of Distribution” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Securities constituting any portion of an unsold allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale.

The Company shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such

 

2


prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 4(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer.

If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the “ Private Exchange ”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer issued under the Indenture, guaranteed by the Guarantors and otherwise identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding the special mandatory redemption relating to the Initial Securities, the provisions relating to the matters described in Section 7 hereof and any other provisions of the Indenture that are no longer applicable to a party thereto as a result of the consummation of the Mergers) to the Initial Securities (the “ Private Exchange Securities ”). The Initial Securities and the guarantees thereof, the Exchange Securities and the guarantees thereof and the Private Exchange Securities and the guarantees thereof are herein collectively called the “ Securities ”.

In connection with the Registered Exchange Offer, the Company shall:

(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;

(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;

(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;

(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and

(e) otherwise comply with all applicable laws.

As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:

(x) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;

(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and

(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange.

 

3


The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter.

Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities.

Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such Holder is not acting on behalf of any person who could not truthfully make the foregoing representations.

Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

3.  Shelf Registration . If, (i) because of any change in law or in applicable interpretations thereof by the staff of the Commission, the Company is not permitted to effect a Registered Exchange Offer, as contemplated by Section 2 hereof, (ii) the Registered Exchange Offer is not consummated within 60 days after the Exchange Offer Registration Statement becomes effective, (iii) any Initial Purchaser so requests with respect to the Initial Securities (or the Private Exchange Securities) not eligible to be exchanged for Exchange Securities in the Registered Exchange Offer and held by it following consummation of the Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer) is not eligible to participate in the Registered Exchange Offer or, in the case of any Holder (other than an Exchanging Dealer) that participates in the Registered Exchange Offer, such Holder does not receive freely tradeable Exchange Securities on the date of the exchange, the Company shall take the following actions:

(a) The Company shall, at its cost, as promptly as practicable (but in no event more than 30 days after so required or requested pursuant to this Section 3) file with the Commission and thereafter shall use commercially reasonable efforts to cause to be declared effective (unless it becomes effective automatically upon filing) a registration statement (the “ Shelf Registration Statement ” and, together with the Exchange Offer Registration Statement, a “ Registration Statement ”) on an appropriate form under the Securities Act relating to the offer and sale of the Transfer Restricted Securities (as defined in Section 7 hereof) by the Holders thereof from time to time in accordance with the methods of distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act (hereinafter, the “ Shelf Registration ”); provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all the provisions of this Agreement applicable to such Holder.

 

4


(b) The Company shall use commercially reasonable efforts to keep the Shelf Registration Statement continuously effective in order to permit the prospectus included therein to be lawfully delivered by the Holders of the relevant Securities for a period of one year (or such longer period extended pursuant to Section 4(j) below) from the Issue Date or such shorter period that will terminate when all the Securities covered by the Shelf Registration Statement (i) have been sold pursuant thereto or (ii) have been distributed to the public pursuant to Rule 144 under the Securities Act. The Company shall be deemed not to have used commercially reasonable efforts to keep the Shelf Registration Statement effective during the requisite period if it voluntarily takes any action that would result in Holders of Securities covered thereby not being able to offer and sell such Securities during that period, unless (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including, but not limited to, the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 4(j) hereof, if applicable.

(c) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall cause the Shelf Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement, amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

4.  Registration Procedures . In connection with any Shelf Registration contemplated by Section 3 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by Section 2 hereof, the following provisions shall apply:

(a) The Company shall (i) furnish to each Initial Purchaser, prior to the filing thereof with the Commission, a copy of the Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, in the event that an Initial Purchaser (with respect to any portion of an unsold allotment from the original offering) is participating in the Registered Exchange Offer or the Shelf Registration Statement, the Company shall use commercially reasonable efforts to reflect in each such document, when so filed with the Commission, such comments as such Initial Purchaser reasonably may propose; (ii) include the information set forth in Annex A hereto on the cover, in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section and in Annex C hereto in the “Plan of Distribution” section of the prospectus forming a part of the Exchange Offer Registration Statement and include the information set forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if requested by an Initial Purchaser, include the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in the prospectus forming a part of the Exchange Offer Registration Statement; (iv) include within the prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the Commission with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) of Exchange Securities received by such broker-dealer in the Registered Exchange Offer (a “ Participating Broker-Dealer ”), whether such positions or policies have been publicly disseminated by the staff of the Commission or such positions or policies, in the reasonable judgment of the Initial Purchasers based upon advice of counsel (which may be in-house counsel), represent the prevailing views of the staff of the Commission; and (v) in the case of a Shelf Registration Statement, include in the prospectus included in the Shelf

 

5


Registration Statement (or, if permitted by Commission Rule 430B(b), in a prospectus supplement that becomes a part thereof pursuant to Commission Rule 430B(f)) that is delivered to any Holder pursuant to Section 4(d) and (f), the names of the Holders, who propose to sell Securities pursuant to the Shelf Registration Statement, as selling securityholders.

(b) The Company shall give written notice to the Initial Purchasers, the Holders of the Securities and any Participating Broker-Dealer from whom the Company has received prior written notice that it will be a Participating Broker-Dealer in the Registered Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made):

(i) when the Registration Statement or any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;

(ii) of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;

(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, of the issuance by the Commission of a notification of objection to the use of the form on which the Registration Statement has been filed, and of the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Commission Rule 405;

(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

(v) of the happening of any event that requires the Company to make changes in the Registration Statement or the prospectus in order that the Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading.

(c) The Company shall use commercially reasonable efforts to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of the Registration Statement.

(d) The Company shall furnish to each Holder of Securities included within the coverage of the Shelf Registration, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment or supplement thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference). The Company shall not, without the prior consent of the Initial Purchasers (which consent shall not be unreasonably withheld, conditioned or delayed), make any offer relating to the Securities that would constitute a “free writing prospectus,” as defined in Commission Rule 405.

(e) The Company shall deliver to each Exchanging Dealer and each Initial Purchaser, and to any other Holder who so requests, without charge, at least one copy of the Exchange Offer Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if any Initial Purchaser or any such Holder requests, all exhibits thereto (including those incorporated by reference).

(f) The Company shall, during the period of effectiveness of the Shelf Registration Statement provided for in Section 3(b), deliver to each Holder of Securities included within the

 

6


coverage of the Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of the Securities in connection with the offering and sale of the Securities covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.

(g) The Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer, without charge, as many copies of the final prospectus included in the Exchange Offer Registration Statement and any amendment or supplement thereto as such persons may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by any Initial Purchaser, if necessary, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer in connection with the offering and sale of the Exchange Securities covered by the prospectus, or any amendment or supplement thereto, included in such Exchange Offer Registration Statement.

(h) Prior to any public offering of the Securities, pursuant to any Registration Statement, the Company shall use commercially reasonable efforts to register or qualify or cooperate with the Holders of the Securities included therein and their respective counsel in connection with the registration or qualification of the Securities for offer and sale under the securities or “blue sky” laws of such states of the United States as any Holder of the Securities reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Registration Statement; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.

(i) The Company shall reasonably cooperate with the Holders of the Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a reasonable period of time prior to sales of the Securities pursuant to such Registration Statement.

(j) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 4(b) above during the period for which the Company is required to maintain an effective Registration Statement, the Company shall promptly prepare and file a post-effective amendment to the Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Securities or purchasers of Securities, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Initial Purchasers, the Holders of the Securities and any known Participating Broker-Dealer in accordance with paragraphs (ii) through (v) of Section 4(b) above to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Initial Purchasers, the Holders of the Securities and any such Participating Broker-Dealers shall suspend use of such prospectus, and the period of effectiveness of the Shelf Registration Statement provided for in Section 3(b) above and the Exchange Offer Registration Statement provided for in Section 2 above shall each be extended by the number of days from and including the date of the giving of such notice to and including the date when the Initial Purchasers, the Holders of the Securities and any known Participating Broker-Dealer shall have received such amended or supplemented prospectus pursuant to this Section 4(j). During the period during which the Company is required to maintain an effective Shelf Registration Statement pursuant to this Agreement, the Company will prior to the three-year expiration of that Shelf Registration

 

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Statement file, and use commercially reasonable efforts to cause to be declared effective (unless it becomes effective automatically upon filing) within a period that avoids any interruption in the ability of Holders of Securities covered by the expiring Shelf Registration Statement to make registered dispositions, a new registration statement relating to the Securities, which shall be deemed the “Shelf Registration Statement” for purposes of this Agreement.

(k) Not later than the effective date of the applicable Registration Statement, the Company will provide a CUSIP number for the Exchange Securities or the Private Exchange Securities, as the case may be, and provide the applicable trustee with printed certificates for the Exchange Securities or the Private Exchange Securities, as the case may be, in a form eligible for deposit with The Depository Trust Company.

(l) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Registered Exchange Offer or the Shelf Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the Registration Statement, which statement shall cover such 12-month period.

(m) The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), in a timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.

(n) The Company may require each Holder of Securities to be sold pursuant to the Shelf Registration Statement to furnish to the Company such information regarding the Holder and the distribution of the Securities as the Company may from time to time reasonably require for inclusion in the Shelf Registration Statement, and the Company may exclude from such registration the Securities of any Holder that fails to furnish such information within a reasonable time after receiving such request.

(o) The Company shall enter into such customary agreements (including, if requested, an underwriting agreement in customary form) and take all such other action, if any, as Holders of a majority of the aggregate principal amount of the Transfer Restricted Securities (the “ Required Holders ”) shall reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration; provided that the Company shall not be required to enter into an underwriting agreement (or similar agreement in respect of an underwritten public offering) more than once; provided further that, if the Required Holders shall request that the Company enter into an underwriting agreement (or similar agreement in respect of an underwritten public offering) at a time when another underwritten public offering with respect to the Company’s securities has been commenced and is then continuing, then the Company may delay entry into the requested underwriting agreement until the earlier of (i) the completion of the then existing underwritten public offering or (ii) the 60th day following receipt of such request from the Required Holders.

(p) In the case of any Shelf Registration, the Company shall (i) make reasonably available for inspection by the Holders of the Securities, any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any attorney, accountant or other agent retained by the Holders of the Securities or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company’s officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders of the Securities or any such underwriter, attorney, accountant or agent in connection with the Shelf Registration Statement, in each case, as shall be reasonably necessary to enable such persons to conduct a reasonable investigation within

 

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the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of the Initial Purchasers by you and on behalf of the other parties by one counsel designated by and on behalf of such other parties as described in Section 5 hereof.

(q) In the case of any Shelf Registration, the Company, if requested by any Holder of Securities covered thereby, shall use its reasonable best efforts to cause (i) its counsel to deliver an opinion in form and substance customary for offerings of such type and reasonably acceptable to such Holders and the managing underwriting, if any, thereof, relating to the Securities and addressed to such Holders and the managing underwriters, if any, thereof and dated the effective date of such Shelf Registration Statement (and, if such Shelf Registration contemplates an underwritten offering, dated the closing date under the underwriting agreement relating thereto); (ii) its officers to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Securities; and (iii) its independent public accountants and the independent public accountants with respect to any other entity for which financial information is provided in the Shelf Registration Statement to provide to the selling Holders of the applicable Securities and any underwriter therefor a comfort letter in customary form and covering matters of the type customarily covered in comfort letters in connection with primary underwritten offerings, subject to receipt of appropriate documentation as contemplated, and only if permitted, by Statement of Auditing Standards No. 72 (or any successor bulletins).

(r) In the case of the Registered Exchange Offer, if requested by any Initial Purchaser or any known Participating Broker-Dealer that is, at the time of such request, holding Initial Securities, the Company shall cause (i) its counsel to deliver to such Initial Purchaser or such Participating Broker-Dealer a signed opinion in the form set forth in Section 7(d) of the Purchase Agreement with such changes as are customary in connection with the preparation of a Registration Statement and (ii) its independent public accountants and the independent public accountants with respect to any other entity for which financial information is provided in the Registration Statement to deliver to such Initial Purchaser or such Participating Broker-Dealer a comfort letter, in customary form, meeting the requirements as to the substance thereof as set forth in Sections 7(a) and 7(b) of the Purchase Agreement with appropriate date changes.

(s) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon delivery of the Initial Securities by Holders to the Company (or to such other Person as directed by the Company) in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be, the Company shall mark, or caused to be marked, on the Initial Securities so exchanged that such Initial Securities are being canceled in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be; in no event shall the Initial Securities be marked as paid or otherwise satisfied.

(t) In the event that any broker-dealer registered under the Exchange Act shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or “assist in the distribution” (within the meaning of the Conduct Rules (the “ Rules ”) of the Financial Industry Regulatory Authority, Inc. (“ FINRA ”)) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company will assist such broker-dealer in complying with the requirements of such Rules, including, without limitation, by (i) if such Rules, including Rule 5121, shall so require, engaging a “qualified independent underwriter” (as defined in Rule 5121) to participate in the preparation of the Registration Statement relating to such Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such Registration Statement is an underwritten offering or is made through a placement or sales agent, to recommend the yield of such Securities, (ii) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 6 hereof and (iii) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the Rules.

 

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(v) The Company shall use commercially reasonable efforts to take all other steps necessary to effect the registration of the Securities covered by a Registration Statement contemplated hereby.

5.  Registration Expenses . The Company shall bear all fees and expenses incurred in connection with the performance of its obligations under Sections 2 through 4 hereof, whether or not the Registered Exchange Offer or a Shelf Registration is filed or becomes effective, and, in the event of a Shelf Registration, shall bear or reimburse the Holders of the Securities covered thereby for the reasonable fees and disbursements of one firm of counsel designated by the Holders of a majority in principal amount of the Initial Securities covered thereby to act as counsel for the Holders of the Initial Securities in connection therewith.

6.  Indemnification . (a) The Company agrees to indemnify and hold harmless each Holder of the Securities, any Participating Broker-Dealer and each person, if any, who controls such Holder or such Participating Broker-Dealer within the meaning of the Securities Act or the Exchange Act (each Holder, any Participating Broker-Dealer and such controlling persons are referred to collectively as the “ Indemnified Parties ”) from and against any losses, claims, damages or liabilities, joint or several, or any actions in respect thereof (including, but not limited to, any losses, claims, damages, liabilities or actions relating to purchases and sales of the Securities) to which each Indemnified Party may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or “issuer free writing prospectus,” as defined in Commission Rule 433 (“ Issuer FWP ”), relating to a Shelf Registration, or arise out of, or are based upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, and shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action in respect thereof; provided, however, that (i) the Company shall not be liable in any such case to the extent that such loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration in reliance upon and in conformity with written information pertaining to such Holder and furnished to the Company by or on behalf of such Holder specifically for inclusion therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder or Participating Broker-Dealer from whom the person asserting any such losses, claims, damages or liabilities purchased the Securities concerned, to the extent that a prospectus relating to such Securities was required to be delivered (including through satisfaction of the conditions of Commission Rule 172) by such Holder or Participating Broker-Dealer under the Securities Act in connection with such purchase and any such loss, claim, damage or liability of such Holder or Participating Broker-Dealer results from the fact that there was not conveyed to such person, at or prior to the time of the sale of such Securities to such person, an amended or supplemented prospectus or, if permitted by Section 4(d), an Issuer FWP correcting such untrue statement or omission or alleged untrue statement or omission if the Company had previously furnished copies thereof to such Holder or Participating Broker-Dealer; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party. The Company shall also indemnify underwriters, their officers and directors and each person who controls such underwriters within the meaning of the Securities Act or the Exchange Act to the same extent as provided above with respect to the indemnification of the Holders of the Securities if requested by such Holders.

(b) Each Holder of the Securities, severally and not jointly, will indemnify and hold harmless the Company and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act from and against any losses, claims, damages or liabilities or any actions in respect thereof, to which the Company or any such controlling person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out

 

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of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, but in each case only to the extent that the untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information pertaining to such Holder and furnished to the Company by or on behalf of such Holder specifically for inclusion therein; and, subject to the limitation set forth immediately preceding this clause, shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, claim, damage, liability or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons.

(c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action or proceeding (including a governmental investigation), such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 6, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action, and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

(d) If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the exchange of the Securities, pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof) as well as any other relevant equitable considerations. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Holder or such other indemnified party, as the case may be, on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred

 

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by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding any other provision of this Section 6(d), the Holders of the Securities shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Holders from the sale of the Securities pursuant to a Registration Statement exceeds the amount of damages which such Holders have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph (d), each person, if any, who controls such indemnified party within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such indemnified party.

(e) The agreements contained in this Section 6 shall survive the sale of the Securities pursuant to a Registration Statement and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party.

7.  Additional Interest Under Certain Circumstances . (a) Additional interest (the “ Additional Interest ”) with respect to the Initial Securities shall be assessed as follows if any of the following events occur (each such event in clauses (i) through (iv) below a “ Registration Default ”):

(i) If an Exchange Offer Registration Statement is required to be filed and it does not become effective by the Effectiveness Deadline;

(ii) If the Registered Exchange Offer is not consummated within 60 days of the effectiveness of the Exchange Offer Registration Statement;

(iii) If an effective Shelf Registration Statement is required to be filed with the Commission but does not become effective within 30 days following the event which required the filing of such Shelf Registration Statement; or

(iv) If after either an Exchange Offer Registration Statement or a Shelf Registration Statement is declared (or becomes automatically) effective (A) such Registration Statement thereafter ceases to be effective or (B) such Registration Statement or the related prospectus ceases to be usable (except as permitted in paragraph (b)) in connection with resales of Transfer Restricted Securities during the periods specified herein because either (1) any event occurs as a result of which the related prospectus forming part of such Registration Statement would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, (2) it shall be necessary to amend such Registration Statement or supplement the related prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, or (3) such Registration Statement is a Shelf Registration Statement that has expired before a replacement Shelf Registration Statement has become effective.

Additional Interest shall accrue on the Initial Securities over and above the interest set forth in the title of such Securities from and including the date on which any such Registration Default shall occur to but excluding the date on which all such Registration Defaults have been cured or the Initial Securities cease to be Transfer Restricted Securities, whichever is earlier, at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default (the “Initial Period”), and such rate will increase by 0.25% per annum on the 91st day following the occurrence of such Registration Default (it being understood and agreed that the maximum Additional Interest rate during the Initial Period shall be 0.25% per annum and the maximum Additional Interest rate thereafter shall be 0.50% per annum, in each case, regardless of the number of Registration Defaults that shall have occurred and be continuing).

(b) A Registration Default referred to in Section 7(a)(iv)(B) hereof shall be deemed not to have occurred and be continuing in relation to a Shelf Registration Statement or the related prospectus if (i) such Registration Default has occurred solely as a result of (x) the filing of a post-effective amendment to such Shelf Registration Statement to incorporate annual audited financial information with respect to the

 

12


Company where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus or (y) the occurrence of other material events with respect to the Company that would be required to be disclosed in such Shelf Registration Statement or the related prospectus, and the disclosure of which in such Shelf Registration Statement or the related prospectus would in the good faith determination of the Company (1) interfere with or affect the negotiation or completion of a transaction that is being contemplated by the Company (whether or not a final decision has been made to undertake such transaction) and (2) involve initial or continuing disclosure obligations that are not in the best interest of the Company or its stockholders at such time and (ii) in the case of clause (y), the Company is proceeding in good faith to amend or supplement such Shelf Registration Statement and related prospectus to describe such events; provided, however, that in any case if such Registration Default occurs for a continuous period in excess of 30 days or more than an aggregate of 90 days in any 12-month period, Additional Interest shall be payable in accordance with the above paragraph from the day such Registration Default occurs until such Registration Default is cured.

(c) Any amounts of Additional Interest due pursuant to clause (i), (ii), (iii) or (iv) of Section 7(a) above will be payable in cash on the regular interest payment dates with respect to the Initial Securities. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Initial Securities, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months), and the denominator of which is 360.

(d) “ Transfer Restricted Securities ” means each Security until (i) the date on which such Transfer Restricted Security has been exchanged by a person other than a broker-dealer for a freely transferable Exchange Security in the Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered Exchange Offer of an Initial Security for an Exchange Security, the date on which such Exchange Security is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the Exchange Offer Registration Statement, (iii) the date on which such Initial Security has been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement, (iv) the date on which such Initial Security is distributed to the public pursuant to Rule 144 under the Securities Act or (v) the earliest date that is no less than one year after the Issue Date and on which such Security (except for Securities held by an affiliate of the Company) may be resold in reliance on paragraph (b)(1) of Rule 144 under the Securities Act or (vi) the date on which such Initial Security shall cease to be outstanding.

8.  Rules 144 and 144A . For as long as any Transfer Restricted Securities remain outstanding, the Company will file with the Securities and Exchange Commission (the “SEC”), and transmit to any Holder of Initial Securities, such information, documents and reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act, at the times and in the manner provided pursuant to the Trust Indenture Act. In addition, the Company will furnish to any Holder of Initial Securities and to prospective purchasers of Initial Securities, upon the requests of such Holder, any information required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision) under the Securities Act, so long as the notes are not freely transferable under the Securities Act. The Company will pay the expenses of printing and distributing all such information.

9.  Underwritten Registrations . If any of the Transfer Restricted Securities covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will administer the offering (“ Managing Underwriters ”) will be selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted Securities to be included in such offering.

No person may participate in any underwritten registration hereunder unless such person (i) agrees to sell such person’s Transfer Restricted Securities on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

 

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10.  Miscellaneous .

(a)  Amendments and Waivers . The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, except by the Company and the written consent of the Holders of a majority in principal amount of the Securities affected by such amendment, modification, supplement, waiver or consents.

(b)  Notices . All communications hereunder will be in writing and, if sent to a Holder of the Securities, will be mailed, delivered or telegraphed to the most current address given by such Holder to the Company, or, if sent to the Initial Purchasers, will be mailed, delivered or telegraphed and confirmed to Citigroup Global Markets Inc., 388 Greenwich Street, New York, N.Y. 10013, Attention: General Counsel and Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it care of Express Scripts, Inc., One Express Way, St. Louis, MO 63121, Attention: Keith Ebling, General Counsel; provided, however, that any notice to an Initial Purchaser pursuant to Section 6 will be mailed, delivered or telegraphed and confirmed to such Initial Purchaser.

(c)  No Inconsistent Agreements . The Company has not, as of the date hereof, entered into, nor shall it, on or after the date hereof, enter into, any agreement with respect to its securities that is inconsistent with the rights granted to the Holders herein or otherwise conflicts with the provisions hereof.

(d)  Merger Date Guarantors; Successors and Assigns . This Agreement shall become effective as to, and binding upon, each of the Merger Date Guarantors upon execution and delivery of a Counterpart. Upon execution of a Counterpart, each Merger Date Guarantor agrees to be bound by the terms, conditions and other provisions of this Agreement as described in the Counterpart, with all rights, duties and obligations stated herein, with the same force and effect as if such party had executed this Agreement on the date hereof. This Agreement shall be binding upon the Company and its successors and assigns.

(e)  Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.

(f)  Headings . The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

(g)  Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

(h)  Severability . If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.

(i)  Securities Held by the Company . Whenever the consent or approval of Holders of a specified percentage of principal amount of Securities is required hereunder, Securities held by the Company or its affiliates (other than subsequent Holders of Securities if such subsequent Holders are deemed to be affiliates solely by reason of their holdings of such Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.

 

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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Issuer a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the several Initial Purchasers, the Issuer and the Closing Date Guarantors in accordance with its terms.

 

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Very truly yours,
ARISTOTLE HOLDING, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer
    and President
EXPRESS SCRIPTS, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer
    and President
AIRPORT HOLDINGS, LLC
ESI REALTY, LLC
By: Express Scripts, Inc., as sole Member
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer
    and President


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LYNNFIELD DRUG, INC.
MATRIX GPO LLC

NATIONAL PRESCRIPTION ADMINISTRATORS, INC.

PRIORITY HEALTHCARE CORPORATION

PRIORITY HEALTHCARE CORPORATION WEST

PRIORITY HEALTHCARE DISTRIBUTION, INC.

PRIORITY HEALTHCARE PHARMACY, INC.

PRIORITYHEALTHCARE.COM, INC.
SINUSPHARMACY, INC.
SPECIALTY INFUSION PHARMACY, INC.
SPECTRACARE, INC.

SPECTRACARE HEALTH CARE VENTURES, INC.

SPECTRACARE INFUSION PHARMACY, INC.

VALUE HEALTH, INC.
YOURPHARMACY.COM, INC.
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
   


CURASCRIPT, INC.
ESI MAIL PHARMACY SERVICE, INC.

EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.

EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.

MOORESVILLE ON-SITE PHARMACY, LLC
By:  

/s/ Patrick McNamee

  Name:   Patrick McNamee
  Title:   President
ESI-GP HOLDINGS, INC.
ESI RESOURCES, INC.
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President
ESI PARTNERSHIP
By: Express Scripts, Inc., as Partner
By:  

/s/ Martin P. Akins

  Name:   Martin P. Akins
  Title:   Vice President and Deputy General
    Counsel
By: ESI-GP Holdings, Inc., as Partner
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President


 

SPECTRACARE OF INDIANA
By: Spectracare, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
By: Care Continuum, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
EXPRESS SCRIPTS MSA, LLC
EXPRESS SCRIPTS WC, INC.
By:  

/s/ Edward Ignaczak

  Name:   Edward Ignaczak
  Title:   President

EXPRESS SCRIPTS SENIOR CARE, INC.

EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC.

By:  

/s/ George Paz

  Name:   George Paz
  Title:   President


 

EXPRESS SCRIPTS CANADA HOLDING, LLC
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President


 

The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written.

Acting on behalf of themselves and as the Representatives of the Initial Purchasers

 

CITIGROUP GLOBAL MARKETS INC.
By:  

/s/ Brian D. Bednarski

  Name:   Brian D. Bednarski
  Title:   Managing Director


 

CREDIT SUISSE SECURITIES (USA) LLC
By:  

/s/ Michael Muntner

  Name:   Michael Muntner
  Title:   Managing Director


ANNEX A

Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date (as defined herein), it will make this Prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”


ANNEX B

Each broker-dealer that receives Exchange Securities for its own account in exchange for Initial Securities, where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. See “Plan of Distribution.”


ANNEX C

PLAN OF DISTRIBUTION

Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date, it will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until                      , 20     , all dealers effecting transactions in the Exchange Securities may be required to deliver a prospectus. ( 1 )

The Company will not receive any proceeds from any sale of Exchange Securities by broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Securities may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of Exchange Securities and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

For a period of 180 days after the Expiration Date the Company will promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the Exchange Offer other than commissions or concessions of any brokers or dealers and will indemnify the Holders of the Securities (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.

 

( 1 )  

In addition, the legend required by Item 502(e) of Regulation S-K will appear on the back cover page of the Exchange Offer prospectus.


ANNEX D

¨ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.

 

Name:

  

 

  

Address:

  

 

  
  

 

  

If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a broker-dealer that will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.


Exhibit A

Counterpart to Registration Rights Agreement

Each signatory hereto (a “ Merger Date Guarantor ”) hereby agrees to join and become a party to the Registration Rights Agreement, dated as of February 9, 2012, among Aristotle Holding, Inc. (the “ Issuer ”) the Guarantors (as defined therein) party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the Initial Purchasers (as defined therein), in respect of the Issuer’s 2.100% Senior Notes due 2015 (the “ Registration Rights Agreement ”), as of the execution and delivery of this counterpart as though it had entered into the Registration Rights Agreement on February 9, 2012. Each Merger Date Guarantor hereby further agrees, effective upon the execution and delivery of this counterpart, to be bound by all of the covenants, agreements and obligations of the “Company” or of a “Guarantor” under the Registration Rights Agreement. For the avoidance of doubt, such covenants, agreements and obligations shall include, but not be limited to, the obligations enumerated in Sections 2, 3, 4, 5, 6, 8 and 10 of the Registration Rights Agreement.

Dated:                    


 

[ Name of Guarantor ]
By:  

 

  Name:  
  Title:  

Exhibit 10.3

EXECUTION COPY

Aristotle Holding, Inc.

$1,500,000,000 2.650% Senior Notes Due 2017

REGISTRATION RIGHTS AGREEMENT

February 9, 2012

C ITIGROUP G LOBAL M ARKETS I NC .,

388 Greenwich Street,

New York, N.Y. 10013

C REDIT S UISSE S ECURITIES (USA) LLC,

Eleven Madison Avenue,

New York, N.Y. 10010-3629

As representatives (the “ Representatives ”) of the Initial Purchasers

Dear Sirs:

Aristotle Holding, Inc., a Delaware corporation (the “ Issuer ”), proposes to issue and sell, upon the terms set forth in a purchase agreement dated February 6, 2012 (as amended prior to the date hereof, the “ Purchase Agreement ”), to the several initial purchasers named in Schedule A to the Purchase Agreement (the “ Initial Purchasers ”), $1,500,000,000 aggregate principal amount of its 2.650% Senior Notes due 2017 (the “ Initial Securities ”) to be unconditionally guaranteed (the “ Guaranties ”) by the Guarantors (as defined below) and any other entity that becomes a guarantor of the Initial Securities following the Closing Date pursuant to the terms of the Indenture (as defined below). As used herein, (i) prior to the consummation of the Mergers and the execution and delivery of any Joinder Agreements and Supplemental Indentures (as defined below) by the Merger Date Guarantors, “Guarantors” means the Closing Date Guarantors and, following the consummation of the Mergers and the execution and delivery of each Joinder Agreement and Supplemental Indenture by a Merger Date Guarantor, “Guarantors” means the Closing Date Guarantors and the Merger Date Guarantors party thereto, (ii) the “Company” refers to the Issuer together with the Guarantors and (iii) capitalized terms used but not defined herein have the meanings ascribed to such terms in the Purchase Agreement.

The Initial Securities will be issued pursuant to an indenture, dated as of November 21, 2011, and supplemented by a supplemental indenture (a “ Supplemental Indenture ”) dated as of February 9, 2012, among the Issuer, the Closing Date Guarantors and Wells Fargo Bank, National Association, as Trustee (as supplemented by the Supplemental Indenture entered into on February 9, 2012, and as may be supplemented from time to time thereafter, the “ Indenture ”). On the Merger Date Medco will, and within 60 days following the Merger Date each other Merger Date Guarantor will, enter into (i) a Supplemental Indenture, pursuant to which each such Merger Date Guarantor will unconditionally guarantee the Initial Securities and (ii) a counterpart to this Agreement in the form attached hereto as Exhibit A (each, a “ Counterpart ”). As an inducement to the Initial Purchasers, the Company agrees with the Initial Purchasers, for the benefit of the holders of the Initial Securities (including, without limitation, the Initial Purchasers), the Exchange Securities (as defined below) and the Private Exchange Securities (as defined below) (collectively, the “ Holders ”), as follows:

1. Assumption and Adoption of this Agreement by the Merger Date Guarantors. On the Merger Date, Medco will execute a Counterpart, and on the date that each other Merger Date Guarantor is required to guarantee the Initial Securities pursuant to the terms of the Indenture, each such other Merger Date Guarantor will execute a Counterpart.

2.  Registered Exchange Offer . The Company shall, at its own cost, prepare and file with the Securities and Exchange Commission (the “ Commission ”) a registration statement (the “ Exchange Offer Registration Statement ”) on an appropriate form under the Securities Act of 1933, as amended (the


Securities Act ”), with respect to a proposed offer (the “ Registered Exchange Offer ”) to the Holders of Transfer Restricted Securities (as defined in Section 7 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities (the “ Exchange Securities ”) of the Issuer issued under the Indenture, guaranteed by the Guarantors and otherwise identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities, the special mandatory redemption relating to the Initial Securities, the provisions relating to the matters described in Section 7 hereof and any other provisions of the Indentures that are no longer applicable to any party thereto as a result of the consummation of the Mergers) that would be registered under the Securities Act. The Company shall (i) use commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act within 280 days (or if the 280th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “ Issue Date ”); provided that such date shall not be earlier than the 60th day following the consummation of the Mergers (the later of the date that is the 280th day after the date of issuance of the Initial Securities and the 60th day after the consummation of the Mergers, the “ Effectiveness Deadline ”), (ii) as soon as practicable after the effectiveness of the Exchange Offer Registration Statement, offer the Exchange Securities in exchange for the Initial Securities and complete such Registered Exchange Offer not later than 60 days after such Exchange Offer Registration Statement becomes effective (or if such 60th day is not a business day, the next succeeding business day) and (iii) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “ Exchange Offer Registration Period ”). For the avoidance of doubt, such Exchange Offer Registration Statement may include debt securities of the Company other than the Initial Securities.

If the Company effects the Registered Exchange Offer, the Company will be entitled to close the Registered Exchange Offer in not less than 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer.

Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that at the time of the commencement of the Registered Exchange Offer such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States.

The Company acknowledges that, pursuant to current interpretations by the Commission’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an “ Exchanging Dealer ”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section, and (c) Annex C hereto in the “Plan of Distribution” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Securities constituting any portion of an unsold allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale.

The Company shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the

 

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Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 4(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer.

If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the “ Private Exchange ”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer issued under the Indenture, guaranteed by the Guarantors and otherwise identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding the special mandatory redemption relating to the Initial Securities, the provisions relating to the matters described in Section 7 hereof and any other provisions of the Indenture that are no longer applicable to a party thereto as a result of the consummation of the Mergers) to the Initial Securities (the “ Private Exchange Securities ”). The Initial Securities and the guarantees thereof, the Exchange Securities and the guarantees thereof and the Private Exchange Securities and the guarantees thereof are herein collectively called the “ Securities ”.

In connection with the Registered Exchange Offer, the Company shall:

(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;

(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;

(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;

(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and

(e) otherwise comply with all applicable laws.

As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:

(x) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;

(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and

(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange.

The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter.

 

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Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities.

Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such Holder is not acting on behalf of any person who could not truthfully make the foregoing representations.

Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

3.  Shelf Registration . If, (i) because of any change in law or in applicable interpretations thereof by the staff of the Commission, the Company is not permitted to effect a Registered Exchange Offer, as contemplated by Section 2 hereof, (ii) the Registered Exchange Offer is not consummated within 60 days after the Exchange Offer Registration Statement becomes effective, (iii) any Initial Purchaser so requests with respect to the Initial Securities (or the Private Exchange Securities) not eligible to be exchanged for Exchange Securities in the Registered Exchange Offer and held by it following consummation of the Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer) is not eligible to participate in the Registered Exchange Offer or, in the case of any Holder (other than an Exchanging Dealer) that participates in the Registered Exchange Offer, such Holder does not receive freely tradeable Exchange Securities on the date of the exchange, the Company shall take the following actions:

(a) The Company shall, at its cost, as promptly as practicable (but in no event more than 30 days after so required or requested pursuant to this Section 3) file with the Commission and thereafter shall use commercially reasonable efforts to cause to be declared effective (unless it becomes effective automatically upon filing) a registration statement (the “ Shelf Registration Statement ” and, together with the Exchange Offer Registration Statement, a “ Registration Statement ”) on an appropriate form under the Securities Act relating to the offer and sale of the Transfer Restricted Securities (as defined in Section 7 hereof) by the Holders thereof from time to time in accordance with the methods of distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act (hereinafter, the “ Shelf Registration ”); provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all the provisions of this Agreement applicable to such Holder.

 

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(b) The Company shall use commercially reasonable efforts to keep the Shelf Registration Statement continuously effective in order to permit the prospectus included therein to be lawfully delivered by the Holders of the relevant Securities for a period of one year (or such longer period extended pursuant to Section 4(j) below) from the Issue Date or such shorter period that will terminate when all the Securities covered by the Shelf Registration Statement (i) have been sold pursuant thereto or (ii) have been distributed to the public pursuant to Rule 144 under the Securities Act. The Company shall be deemed not to have used commercially reasonable efforts to keep the Shelf Registration Statement effective during the requisite period if it voluntarily takes any action that would result in Holders of Securities covered thereby not being able to offer and sell such Securities during that period, unless (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including, but not limited to, the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 4(j) hereof, if applicable.

(c) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall cause the Shelf Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement, amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

4.  Registration Procedures . In connection with any Shelf Registration contemplated by Section 3 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by Section 2 hereof, the following provisions shall apply:

(a) The Company shall (i) furnish to each Initial Purchaser, prior to the filing thereof with the Commission, a copy of the Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, in the event that an Initial Purchaser (with respect to any portion of an unsold allotment from the original offering) is participating in the Registered Exchange Offer or the Shelf Registration Statement, the Company shall use commercially reasonable efforts to reflect in each such document, when so filed with the Commission, such comments as such Initial Purchaser reasonably may propose; (ii) include the information set forth in Annex A hereto on the cover, in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section and in Annex C hereto in the “Plan of Distribution” section of the prospectus forming a part of the Exchange Offer Registration Statement and include the information set forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if requested by an Initial Purchaser, include the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in the prospectus forming a part of the Exchange Offer Registration Statement; (iv) include within the prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the Commission with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) of Exchange Securities received by such broker-dealer in the Registered Exchange Offer (a “ Participating Broker-Dealer ”), whether such positions or policies have been publicly disseminated by the staff of the Commission or such positions or policies, in the reasonable judgment of the Initial Purchasers based upon advice of counsel (which may be in-house counsel), represent the prevailing views of the staff of the Commission; and (v) in the case of a Shelf Registration Statement, include in the prospectus included in the Shelf Registration Statement (or, if permitted by Commission Rule 430B(b), in a prospectus supplement that becomes a part thereof pursuant to Commission Rule 430B(f)) that is delivered to any Holder pursuant to Section 4(d) and (f), the names of the Holders, who propose to sell Securities pursuant to the Shelf Registration Statement, as selling securityholders.

 

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(b) The Company shall give written notice to the Initial Purchasers, the Holders of the Securities and any Participating Broker-Dealer from whom the Company has received prior written notice that it will be a Participating Broker-Dealer in the Registered Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made):

(i) when the Registration Statement or any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;

(ii) of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;

(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, of the issuance by the Commission of a notification of objection to the use of the form on which the Registration Statement has been filed, and of the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Commission Rule 405;

(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

(v) of the happening of any event that requires the Company to make changes in the Registration Statement or the prospectus in order that the Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading.

(c) The Company shall use commercially reasonable efforts to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of the Registration Statement.

(d) The Company shall furnish to each Holder of Securities included within the coverage of the Shelf Registration, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment or supplement thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference). The Company shall not, without the prior consent of the Initial Purchasers (which consent shall not be unreasonably withheld, conditioned or delayed), make any offer relating to the Securities that would constitute a “free writing prospectus,” as defined in Commission Rule 405.

(e) The Company shall deliver to each Exchanging Dealer and each Initial Purchaser, and to any other Holder who so requests, without charge, at least one copy of the Exchange Offer Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if any Initial Purchaser or any such Holder requests, all exhibits thereto (including those incorporated by reference).

(f) The Company shall, during the period of effectiveness of the Shelf Registration Statement provided for in Section 3(b), deliver to each Holder of Securities included within the coverage of the Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or

 

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supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of the Securities in connection with the offering and sale of the Securities covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.

(g) The Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer, without charge, as many copies of the final prospectus included in the Exchange Offer Registration Statement and any amendment or supplement thereto as such persons may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by any Initial Purchaser, if necessary, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer in connection with the offering and sale of the Exchange Securities covered by the prospectus, or any amendment or supplement thereto, included in such Exchange Offer Registration Statement.

(h) Prior to any public offering of the Securities, pursuant to any Registration Statement, the Company shall use commercially reasonable efforts to register or qualify or cooperate with the Holders of the Securities included therein and their respective counsel in connection with the registration or qualification of the Securities for offer and sale under the securities or “blue sky” laws of such states of the United States as any Holder of the Securities reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Registration Statement; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.

(i) The Company shall reasonably cooperate with the Holders of the Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a reasonable period of time prior to sales of the Securities pursuant to such Registration Statement.

(j) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 4(b) above during the period for which the Company is required to maintain an effective Registration Statement, the Company shall promptly prepare and file a post-effective amendment to the Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Securities or purchasers of Securities, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Initial Purchasers, the Holders of the Securities and any known Participating Broker-Dealer in accordance with paragraphs (ii) through (v) of Section 4(b) above to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Initial Purchasers, the Holders of the Securities and any such Participating Broker-Dealers shall suspend use of such prospectus, and the period of effectiveness of the Shelf Registration Statement provided for in Section 3(b) above and the Exchange Offer Registration Statement provided for in Section 2 above shall each be extended by the number of days from and including the date of the giving of such notice to and including the date when the Initial Purchasers, the Holders of the Securities and any known Participating Broker-Dealer shall have received such amended or supplemented prospectus pursuant to this Section 4(j). During the period during which the Company is required to maintain an effective Shelf Registration Statement pursuant to this Agreement, the Company will prior to the three-year expiration of that Shelf Registration Statement file, and use commercially reasonable efforts to cause to be declared effective (unless it becomes effective automatically upon filing) within a period that avoids any interruption in the

 

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ability of Holders of Securities covered by the expiring Shelf Registration Statement to make registered dispositions, a new registration statement relating to the Securities, which shall be deemed the “Shelf Registration Statement” for purposes of this Agreement.

(k) Not later than the effective date of the applicable Registration Statement, the Company will provide a CUSIP number for the Exchange Securities or the Private Exchange Securities, as the case may be, and provide the applicable trustee with printed certificates for the Exchange Securities or the Private Exchange Securities, as the case may be, in a form eligible for deposit with The Depository Trust Company.

(l) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Registered Exchange Offer or the Shelf Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the Registration Statement, which statement shall cover such 12-month period.

(m) The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), in a timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.

(n) The Company may require each Holder of Securities to be sold pursuant to the Shelf Registration Statement to furnish to the Company such information regarding the Holder and the distribution of the Securities as the Company may from time to time reasonably require for inclusion in the Shelf Registration Statement, and the Company may exclude from such registration the Securities of any Holder that fails to furnish such information within a reasonable time after receiving such request.

(o) The Company shall enter into such customary agreements (including, if requested, an underwriting agreement in customary form) and take all such other action, if any, as Holders of a majority of the aggregate principal amount of the Transfer Restricted Securities (the “ Required Holders ”) shall reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration; provided that the Company shall not be required to enter into an underwriting agreement (or similar agreement in respect of an underwritten public offering) more than once; provided further that, if the Required Holders shall request that the Company enter into an underwriting agreement (or similar agreement in respect of an underwritten public offering) at a time when another underwritten public offering with respect to the Company’s securities has been commenced and is then continuing, then the Company may delay entry into the requested underwriting agreement until the earlier of (i) the completion of the then existing underwritten public offering or (ii) the 60th day following receipt of such request from the Required Holders.

(p) In the case of any Shelf Registration, the Company shall (i) make reasonably available for inspection by the Holders of the Securities, any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any attorney, accountant or other agent retained by the Holders of the Securities or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company’s officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders of the Securities or any such underwriter, attorney, accountant or agent in connection with the Shelf Registration Statement, in each case, as shall be reasonably necessary to enable such persons to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of the Initial Purchasers by you and on behalf of the other parties by one counsel designated by and on behalf of such other parties as described in Section 5 hereof.

 

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(q) In the case of any Shelf Registration, the Company, if requested by any Holder of Securities covered thereby, shall use its reasonable best efforts to cause (i) its counsel to deliver an opinion in form and substance customary for offerings of such type and reasonably acceptable to such Holders and the managing underwriting, if any, thereof, relating to the Securities and addressed to such Holders and the managing underwriters, if any, thereof and dated the effective date of such Shelf Registration Statement (and, if such Shelf Registration contemplates an underwritten offering, dated the closing date under the underwriting agreement relating thereto); (ii) its officers to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Securities; and (iii) its independent public accountants and the independent public accountants with respect to any other entity for which financial information is provided in the Shelf Registration Statement to provide to the selling Holders of the applicable Securities and any underwriter therefor a comfort letter in customary form and covering matters of the type customarily covered in comfort letters in connection with primary underwritten offerings, subject to receipt of appropriate documentation as contemplated, and only if permitted, by Statement of Auditing Standards No. 72 (or any successor bulletins).

(r) In the case of the Registered Exchange Offer, if requested by any Initial Purchaser or any known Participating Broker-Dealer that is, at the time of such request, holding Initial Securities, the Company shall cause (i) its counsel to deliver to such Initial Purchaser or such Participating Broker-Dealer a signed opinion in the form set forth in Section 7(d) of the Purchase Agreement with such changes as are customary in connection with the preparation of a Registration Statement and (ii) its independent public accountants and the independent public accountants with respect to any other entity for which financial information is provided in the Registration Statement to deliver to such Initial Purchaser or such Participating Broker-Dealer a comfort letter, in customary form, meeting the requirements as to the substance thereof as set forth in Sections 7(a) and 7(b) of the Purchase Agreement with appropriate date changes.

(s) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon delivery of the Initial Securities by Holders to the Company (or to such other Person as directed by the Company) in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be, the Company shall mark, or caused to be marked, on the Initial Securities so exchanged that such Initial Securities are being canceled in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be; in no event shall the Initial Securities be marked as paid or otherwise satisfied.

(t) In the event that any broker-dealer registered under the Exchange Act shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or “assist in the distribution” (within the meaning of the Conduct Rules (the “ Rules ”) of the Financial Industry Regulatory Authority, Inc. (“ FINRA ”)) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company will assist such broker-dealer in complying with the requirements of such Rules, including, without limitation, by (i) if such Rules, including Rule 5121, shall so require, engaging a “qualified independent underwriter” (as defined in Rule 5121) to participate in the preparation of the Registration Statement relating to such Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such Registration Statement is an underwritten offering or is made through a placement or sales agent, to recommend the yield of such Securities, (ii) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 6 hereof and (iii) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the Rules.

 

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(v) The Company shall use commercially reasonable efforts to take all other steps necessary to effect the registration of the Securities covered by a Registration Statement contemplated hereby.

5.  Registration Expenses . The Company shall bear all fees and expenses incurred in connection with the performance of its obligations under Sections 2 through 4 hereof, whether or not the Registered Exchange Offer or a Shelf Registration is filed or becomes effective, and, in the event of a Shelf Registration, shall bear or reimburse the Holders of the Securities covered thereby for the reasonable fees and disbursements of one firm of counsel designated by the Holders of a majority in principal amount of the Initial Securities covered thereby to act as counsel for the Holders of the Initial Securities in connection therewith.

6.  Indemnification . (a) The Company agrees to indemnify and hold harmless each Holder of the Securities, any Participating Broker-Dealer and each person, if any, who controls such Holder or such Participating Broker-Dealer within the meaning of the Securities Act or the Exchange Act (each Holder, any Participating Broker-Dealer and such controlling persons are referred to collectively as the “ Indemnified Parties ”) from and against any losses, claims, damages or liabilities, joint or several, or any actions in respect thereof (including, but not limited to, any losses, claims, damages, liabilities or actions relating to purchases and sales of the Securities) to which each Indemnified Party may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or “issuer free writing prospectus,” as defined in Commission Rule 433 (“ Issuer FWP ”), relating to a Shelf Registration, or arise out of, or are based upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, and shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action in respect thereof; provided, however, that (i) the Company shall not be liable in any such case to the extent that such loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration in reliance upon and in conformity with written information pertaining to such Holder and furnished to the Company by or on behalf of such Holder specifically for inclusion therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder or Participating Broker-Dealer from whom the person asserting any such losses, claims, damages or liabilities purchased the Securities concerned, to the extent that a prospectus relating to such Securities was required to be delivered (including through satisfaction of the conditions of Commission Rule 172) by such Holder or Participating Broker-Dealer under the Securities Act in connection with such purchase and any such loss, claim, damage or liability of such Holder or Participating Broker-Dealer results from the fact that there was not conveyed to such person, at or prior to the time of the sale of such Securities to such person, an amended or supplemented prospectus or, if permitted by Section 4(d), an Issuer FWP correcting such untrue statement or omission or alleged untrue statement or omission if the Company had previously furnished copies thereof to such Holder or Participating Broker-Dealer; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party. The Company shall also indemnify underwriters, their officers and directors and each person who controls such underwriters within the meaning of the Securities Act or the Exchange Act to the same extent as provided above with respect to the indemnification of the Holders of the Securities if requested by such Holders.

(b) Each Holder of the Securities, severally and not jointly, will indemnify and hold harmless the Company and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act from and against any losses, claims, damages or liabilities or any actions in respect thereof, to which the Company or any such controlling person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out

 

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of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, but in each case only to the extent that the untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information pertaining to such Holder and furnished to the Company by or on behalf of such Holder specifically for inclusion therein; and, subject to the limitation set forth immediately preceding this clause, shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, claim, damage, liability or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons.

(c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action or proceeding (including a governmental investigation), such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 6, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action, and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

(d) If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the exchange of the Securities, pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof) as well as any other relevant equitable considerations. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Holder or such other indemnified party, as the case may be, on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred

 

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by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding any other provision of this Section 6(d), the Holders of the Securities shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Holders from the sale of the Securities pursuant to a Registration Statement exceeds the amount of damages which such Holders have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph (d), each person, if any, who controls such indemnified party within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such indemnified party.

(e) The agreements contained in this Section 6 shall survive the sale of the Securities pursuant to a Registration Statement and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party.

7.  Additional Interest Under Certain Circumstances . (a) Additional interest (the “ Additional Interest ”) with respect to the Initial Securities shall be assessed as follows if any of the following events occur (each such event in clauses (i) through (iv) below a “ Registration Default ”):

(i) If an Exchange Offer Registration Statement is required to be filed and it does not become effective by the Effectiveness Deadline;

(ii) If the Registered Exchange Offer is not consummated within 60 days of the effectiveness of the Exchange Offer Registration Statement;

(iii) If an effective Shelf Registration Statement is required to be filed with the Commission but does not become effective within 30 days following the event which required the filing of such Shelf Registration Statement; or

(iv) If after either an Exchange Offer Registration Statement or a Shelf Registration Statement is declared (or becomes automatically) effective (A) such Registration Statement thereafter ceases to be effective or (B) such Registration Statement or the related prospectus ceases to be usable (except as permitted in paragraph (b)) in connection with resales of Transfer Restricted Securities during the periods specified herein because either (1) any event occurs as a result of which the related prospectus forming part of such Registration Statement would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, (2) it shall be necessary to amend such Registration Statement or supplement the related prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, or (3) such Registration Statement is a Shelf Registration Statement that has expired before a replacement Shelf Registration Statement has become effective.

Additional Interest shall accrue on the Initial Securities over and above the interest set forth in the title of such Securities from and including the date on which any such Registration Default shall occur to but excluding the date on which all such Registration Defaults have been cured or the Initial Securities cease to be Transfer Restricted Securities, whichever is earlier, at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default (the “Initial Period”), and such rate will increase by 0.25% per annum on the 91st day following the occurrence of such Registration Default (it being understood and agreed that the maximum Additional Interest rate during the Initial Period shall be 0.25% per annum and the maximum Additional Interest rate thereafter shall be 0.50% per annum, in each case, regardless of the number of Registration Defaults that shall have occurred and be continuing).

(b) A Registration Default referred to in Section 7(a)(iv)(B) hereof shall be deemed not to have occurred and be continuing in relation to a Shelf Registration Statement or the related prospectus if (i) such Registration Default has occurred solely as a result of (x) the filing of a post-effective amendment to such Shelf Registration Statement to incorporate annual audited financial information with respect to the

 

12


Company where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus or (y) the occurrence of other material events with respect to the Company that would be required to be disclosed in such Shelf Registration Statement or the related prospectus, and the disclosure of which in such Shelf Registration Statement or the related prospectus would in the good faith determination of the Company (1) interfere with or affect the negotiation or completion of a transaction that is being contemplated by the Company (whether or not a final decision has been made to undertake such transaction) and (2) involve initial or continuing disclosure obligations that are not in the best interest of the Company or its stockholders at such time and (ii) in the case of clause (y), the Company is proceeding in good faith to amend or supplement such Shelf Registration Statement and related prospectus to describe such events; provided, however, that in any case if such Registration Default occurs for a continuous period in excess of 30 days or more than an aggregate of 90 days in any 12-month period, Additional Interest shall be payable in accordance with the above paragraph from the day such Registration Default occurs until such Registration Default is cured.

(c) Any amounts of Additional Interest due pursuant to clause (i), (ii), (iii) or (iv) of Section 7(a) above will be payable in cash on the regular interest payment dates with respect to the Initial Securities. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Initial Securities, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months), and the denominator of which is 360.

(d) “ Transfer Restricted Securities ” means each Security until (i) the date on which such Transfer Restricted Security has been exchanged by a person other than a broker-dealer for a freely transferable Exchange Security in the Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered Exchange Offer of an Initial Security for an Exchange Security, the date on which such Exchange Security is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the Exchange Offer Registration Statement, (iii) the date on which such Initial Security has been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement, (iv) the date on which such Initial Security is distributed to the public pursuant to Rule 144 under the Securities Act or (v) the earliest date that is no less than one year after the Issue Date and on which such Security (except for Securities held by an affiliate of the Company) may be resold in reliance on paragraph (b)(1) of Rule 144 under the Securities Act or (vi) the date on which such Initial Security shall cease to be outstanding.

8.  Rules 144 and 144A . For as long as any Transfer Restricted Securities remain outstanding, the Company will file with the Securities and Exchange Commission (the “SEC”), and transmit to any Holder of Initial Securities, such information, documents and reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act, at the times and in the manner provided pursuant to the Trust Indenture Act. In addition, the Company will furnish to any Holder of Initial Securities and to prospective purchasers of Initial Securities, upon the requests of such Holder, any information required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision) under the Securities Act, so long as the notes are not freely transferable under the Securities Act. The Company will pay the expenses of printing and distributing all such information.

9.  Underwritten Registrations . If any of the Transfer Restricted Securities covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will administer the offering (“ Managing Underwriters ”) will be selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted Securities to be included in such offering.

No person may participate in any underwritten registration hereunder unless such person (i) agrees to sell such person’s Transfer Restricted Securities on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

 

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10.  Miscellaneous .

(a)  Amendments and Waivers . The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, except by the Company and the written consent of the Holders of a majority in principal amount of the Securities affected by such amendment, modification, supplement, waiver or consents.

(b)  Notices . All communications hereunder will be in writing and, if sent to a Holder of the Securities, will be mailed, delivered or telegraphed to the most current address given by such Holder to the Company, or, if sent to the Initial Purchasers, will be mailed, delivered or telegraphed and confirmed to Citigroup Global Markets Inc., 388 Greenwich Street, New York, N.Y. 10013, Attention: General Counsel and Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it care of Express Scripts, Inc., One Express Way, St. Louis, MO 63121, Attention: Keith Ebling, General Counsel; provided, however, that any notice to an Initial Purchaser pursuant to Section 6 will be mailed, delivered or telegraphed and confirmed to such Initial Purchaser.

(c)  No Inconsistent Agreements . The Company has not, as of the date hereof, entered into, nor shall it, on or after the date hereof, enter into, any agreement with respect to its securities that is inconsistent with the rights granted to the Holders herein or otherwise conflicts with the provisions hereof.

(d)  Merger Date Guarantors; Successors and Assigns . This Agreement shall become effective as to, and binding upon, each of the Merger Date Guarantors upon execution and delivery of a Counterpart. Upon execution of a Counterpart, each Merger Date Guarantor agrees to be bound by the terms, conditions and other provisions of this Agreement as described in the Counterpart, with all rights, duties and obligations stated herein, with the same force and effect as if such party had executed this Agreement on the date hereof. This Agreement shall be binding upon the Company and its successors and assigns.

(e)  Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.

(f)  Headings . The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

(g)  Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

(h)  Severability . If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.

(i)  Securities Held by the Company . Whenever the consent or approval of Holders of a specified percentage of principal amount of Securities is required hereunder, Securities held by the Company or its affiliates (other than subsequent Holders of Securities if such subsequent Holders are deemed to be affiliates solely by reason of their holdings of such Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.

 

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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Issuer a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the several Initial Purchasers, the Issuer and the Closing Date Guarantors in accordance with its terms.

 

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Very truly yours,
ARISTOTLE HOLDING, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer
    and President
EXPRESS SCRIPTS, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer
    and President
AIRPORT HOLDINGS, LLC
ESI REALTY, LLC
By:   Express Scripts, Inc., as sole Member
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer
    and President


 

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PRIORITY HEALTHCARE DISTRIBUTION, INC.

PRIORITY HEALTHCARE PHARMACY, INC.

PRIORITYHEALTHCARE.COM, INC.

SINUSPHARMACY, INC.

SPECIALTY INFUSION PHARMACY, INC.

SPECTRACARE, INC.

SPECTRACARE HEALTH CARE VENTURES, INC.

SPECTRACARE INFUSION PHARMACY, INC.

VALUE HEALTH, INC.

YOURPHARMACY.COM, INC.

By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President


 

CURASCRIPT, INC.

ESI MAIL PHARMACY SERVICE, INC.

EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.

EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.

MOORESVILLE ON-SITE PHARMACY, LLC

By:  

/s/ Patrick Mc Namee

  Name:   Patrick McNamee
  Title:   President
ESI-GP HOLDINGS, INC.
ESI RESOURCES, INC.
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President
ESI PARTNERSHIP
By:   Express Scripts, Inc., as Partner
By:  

/s/ Martin P. Akins

  Name:   Martin P. Akins
  Title:   Vice President and Deputy General
    Counsel
By:   ESI-GP Holdings, Inc., as Partner
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President


 

SPECTRACARE OF INDIANA
By:   Spectracare, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
By:   Care Continuum, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President

EXPRESS SCRIPTS MSA, LLC

EXPRESS SCRIPTS WC, INC.

By:  

/s/ Edward Ignaczak

  Name:   Edward Ignaczak
  Title:   President

EXPRESS SCRIPTS SENIOR CARE, INC.

EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC.

By:  

/s/ George Paz

  Name:   George Paz
  Title:   President
EXPRESS SCRIPTS CANADA HOLDING, LLC
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President


 

The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written.

 

Acting on behalf of themselves and as the Representatives of the Initial Purchasers

CITIGROUP GLOBAL MARKETS INC.
By:  

/s/ Brian D. Bednarski

  Name:   Brian D. Bednarski
  Title:   Managing Director


 

CREDIT SUISSE SECURITIES (USA) LLC
By:  

/s/ Michael Muntner

  Name: Michael Muntner
  Title:   Managing Director


ANNEX A

Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date (as defined herein), it will make this Prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”


ANNEX B

Each broker-dealer that receives Exchange Securities for its own account in exchange for Initial Securities, where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. See “Plan of Distribution.”


ANNEX C

PLAN OF DISTRIBUTION

Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date, it will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until                     , 20    , all dealers effecting transactions in the Exchange Securities may be required to deliver a prospectus. ( 1 )

The Company will not receive any proceeds from any sale of Exchange Securities by broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Securities may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of Exchange Securities and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

For a period of 180 days after the Expiration Date the Company will promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the Exchange Offer other than commissions or concessions of any brokers or dealers and will indemnify the Holders of the Securities (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.

 

( 1 )  

In addition, the legend required by Item 502(e) of Regulation S-K will appear on the back cover page of the Exchange Offer prospectus.


ANNEX D

¨     CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.

 

Name:  

 

Address:  

 

 

 

If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a broker-dealer that will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.


Exhibit A

Counterpart to Registration Rights Agreement

Each signatory hereto (a “ Merger Date Guarantor ”) hereby agrees to join and become a party to the Registration Rights Agreement, dated as of February 9, 2012, among Aristotle Holding, Inc. (the “ Issuer ”) the Guarantors (as defined therein) party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the Initial Purchasers (as defined therein), in respect of the Issuer’s 2.650% Senior Notes due 2017 (the “ Registration Rights Agreement ”), as of the execution and delivery of this counterpart as though it had entered into the Registration Rights Agreement on February 9, 2012. Each Merger Date Guarantor hereby further agrees, effective upon the execution and delivery of this counterpart, to be bound by all of the covenants, agreements and obligations of the “Company” or of a “Guarantor” under the Registration Rights Agreement. For the avoidance of doubt, such covenants, agreements and obligations shall include, but not be limited to, the obligations enumerated in Sections 2, 3, 4, 5, 6, 8 and 10 of the Registration Rights Agreement.

Dated:                    


 

[ Name of Guarantor ]
By:  

 

  Name:
  Title:

Exhibit 10.4

EXECUTION COPY

Aristotle Holding, Inc.

$1,000,000,000 3.900% Senior Notes Due 2022

REGISTRATION RIGHTS AGREEMENT

February 9, 2012

C ITIGROUP G LOBAL M ARKETS I NC .,

388 Greenwich Street,

New York, N.Y. 10013

C REDIT S UISSE S ECURITIES (USA) LLC,

Eleven Madison Avenue,

New York, N.Y. 10010-3629

As representatives (the “ Representatives ”) of the Initial Purchasers

Dear Sirs:

Aristotle Holding, Inc., a Delaware corporation (the “ Issuer ”), proposes to issue and sell, upon the terms set forth in a purchase agreement dated February 6, 2012 (as amended prior to the date hereof, the “ Purchase Agreement ”), to the several initial purchasers named in Schedule A to the Purchase Agreement (the “ Initial Purchasers ”), $1,000,000,000 aggregate principal amount of its 3.900% Senior Notes due 2022 (the “ Initial Securities ”) to be unconditionally guaranteed (the “ Guaranties ”) by the Guarantors (as defined below) and any other entity that becomes a guarantor of the Initial Securities following the Closing Date pursuant to the terms of the Indenture (as defined below). As used herein, (i) prior to the consummation of the Mergers and the execution and delivery of any Joinder Agreements and Supplemental Indentures (as defined below) by the Merger Date Guarantors, “Guarantors” means the Closing Date Guarantors and, following the consummation of the Mergers and the execution and delivery of each Joinder Agreement and Supplemental Indenture by a Merger Date Guarantor, “Guarantors” means the Closing Date Guarantors and the Merger Date Guarantors party thereto, (ii) the “Company” refers to the Issuer together with the Guarantors and (iii) capitalized terms used but not defined herein have the meanings ascribed to such terms in the Purchase Agreement.

The Initial Securities will be issued pursuant to an indenture, dated as of November 21, 2011, and supplemented by a supplemental indenture (a “ Supplemental Indenture ”) dated as of February 9, 2012, among the Issuer, the Closing Date Guarantors and Wells Fargo Bank, National Association, as Trustee (as supplemented by the Supplemental Indenture entered into on February 9, 2012, and as may be supplemented from time to time thereafter, the “ Indenture ”). On the Merger Date Medco will, and within 60 days following the Merger Date each other Merger Date Guarantor will, enter into (i) a Supplemental Indenture, pursuant to which each such Merger Date Guarantor will unconditionally guarantee the Initial Securities and (ii) a counterpart to this Agreement in the form attached hereto as Exhibit A (each, a “ Counterpart ”). As an inducement to the Initial Purchasers, the Company agrees with the Initial Purchasers, for the benefit of the holders of the Initial Securities (including, without limitation, the Initial Purchasers), the Exchange Securities (as defined below) and the Private Exchange Securities (as defined below) (collectively, the “ Holders ”), as follows:

1. Assumption and Adoption of this Agreement by the Merger Date Guarantors. On the Merger Date, Medco will execute a Counterpart, and on the date that each other Merger Date Guarantor is required to guarantee the Initial Securities pursuant to the terms of the Indenture, each such other Merger Date Guarantor will execute a Counterpart.

2.  Registered Exchange Offer . The Company shall, at its own cost, prepare and file with the Securities and Exchange Commission (the “ Commission ”) a registration statement (the “ Exchange Offer


Registration Statement ”) on an appropriate form under the Securities Act of 1933, as amended (the “ Securities Act ”), with respect to a proposed offer (the “ Registered Exchange Offer ”) to the Holders of Transfer Restricted Securities (as defined in Section 7 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities (the “ Exchange Securities ”) of the Issuer issued under the Indenture, guaranteed by the Guarantors and otherwise identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities, the special mandatory redemption relating to the Initial Securities, the provisions relating to the matters described in Section 7 hereof and any other provisions of the Indentures that are no longer applicable to any party thereto as a result of the consummation of the Mergers) that would be registered under the Securities Act. The Company shall (i) use commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act within 280 days (or if the 280th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “ Issue Date ”); provided that such date shall not be earlier than the 60th day following the consummation of the Mergers (the later of the date that is the 280th day after the date of issuance of the Initial Securities and the 60th day after the consummation of the Mergers, the “ Effectiveness Deadline ”), (ii) as soon as practicable after the effectiveness of the Exchange Offer Registration Statement, offer the Exchange Securities in exchange for the Initial Securities and complete such Registered Exchange Offer not later than 60 days after such Exchange Offer Registration Statement becomes effective (or if such 60th day is not a business day, the next succeeding business day) and (iii) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “ Exchange Offer Registration Period ”). For the avoidance of doubt, such Exchange Offer Registration Statement may include debt securities of the Company other than the Initial Securities.

If the Company effects the Registered Exchange Offer, the Company will be entitled to close the Registered Exchange Offer in not less than 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer.

Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that at the time of the commencement of the Registered Exchange Offer such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States.

The Company acknowledges that, pursuant to current interpretations by the Commission’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an “ Exchanging Dealer ”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section, and (c) Annex C hereto in the “Plan of Distribution” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Securities constituting any portion of an unsold allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale.

The Company shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such

 

2


prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 4(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer.

If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the “ Private Exchange ”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Issuer issued under the Indenture, guaranteed by the Guarantors and otherwise identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding the special mandatory redemption relating to the Initial Securities, the provisions relating to the matters described in Section 7 hereof and any other provisions of the Indenture that are no longer applicable to a party thereto as a result of the consummation of the Mergers) to the Initial Securities (the “ Private Exchange Securities ”). The Initial Securities and the guarantees thereof, the Exchange Securities and the guarantees thereof and the Private Exchange Securities and the guarantees thereof are herein collectively called the “ Securities ”.

In connection with the Registered Exchange Offer, the Company shall:

(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;

(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;

(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;

(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and

(e) otherwise comply with all applicable laws.

As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:

(x) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;

(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and

(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange.

 

3


The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter.

Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities.

Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such Holder is not acting on behalf of any person who could not truthfully make the foregoing representations.

Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

3.  Shelf Registration . If, (i) because of any change in law or in applicable interpretations thereof by the staff of the Commission, the Company is not permitted to effect a Registered Exchange Offer, as contemplated by Section 2 hereof, (ii) the Registered Exchange Offer is not consummated within 60 days after the Exchange Offer Registration Statement becomes effective, (iii) any Initial Purchaser so requests with respect to the Initial Securities (or the Private Exchange Securities) not eligible to be exchanged for Exchange Securities in the Registered Exchange Offer and held by it following consummation of the Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer) is not eligible to participate in the Registered Exchange Offer or, in the case of any Holder (other than an Exchanging Dealer) that participates in the Registered Exchange Offer, such Holder does not receive freely tradeable Exchange Securities on the date of the exchange, the Company shall take the following actions:

(a) The Company shall, at its cost, as promptly as practicable (but in no event more than 30 days after so required or requested pursuant to this Section 3) file with the Commission and thereafter shall use commercially reasonable efforts to cause to be declared effective (unless it becomes effective automatically upon filing) a registration statement (the “ Shelf Registration Statement ” and, together with the Exchange Offer Registration Statement, a “ Registration Statement ”) on an appropriate form under the Securities Act relating to the offer and sale of the Transfer Restricted Securities (as defined in Section 7 hereof) by the Holders thereof from time to time in accordance with the methods of distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act (hereinafter, the “ Shelf Registration ”); provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all the provisions of this Agreement applicable to such Holder.

 

4


(b) The Company shall use commercially reasonable efforts to keep the Shelf Registration Statement continuously effective in order to permit the prospectus included therein to be lawfully delivered by the Holders of the relevant Securities for a period of one year (or such longer period extended pursuant to Section 4(j) below) from the Issue Date or such shorter period that will terminate when all the Securities covered by the Shelf Registration Statement (i) have been sold pursuant thereto or (ii) have been distributed to the public pursuant to Rule 144 under the Securities Act. The Company shall be deemed not to have used commercially reasonable efforts to keep the Shelf Registration Statement effective during the requisite period if it voluntarily takes any action that would result in Holders of Securities covered thereby not being able to offer and sell such Securities during that period, unless (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder), including, but not limited to, the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 4(j) hereof, if applicable.

(c) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall cause the Shelf Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement, amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

4.  Registration Procedures . In connection with any Shelf Registration contemplated by Section 3 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by Section 2 hereof, the following provisions shall apply:

(a) The Company shall (i) furnish to each Initial Purchaser, prior to the filing thereof with the Commission, a copy of the Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, in the event that an Initial Purchaser (with respect to any portion of an unsold allotment from the original offering) is participating in the Registered Exchange Offer or the Shelf Registration Statement, the Company shall use commercially reasonable efforts to reflect in each such document, when so filed with the Commission, such comments as such Initial Purchaser reasonably may propose; (ii) include the information set forth in Annex A hereto on the cover, in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section and in Annex C hereto in the “Plan of Distribution” section of the prospectus forming a part of the Exchange Offer Registration Statement and include the information set forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if requested by an Initial Purchaser, include the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in the prospectus forming a part of the Exchange Offer Registration Statement; (iv) include within the prospectus contained in the Exchange Offer Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the Commission with respect to the potential “underwriter” status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) of Exchange Securities received by such broker-dealer in the Registered Exchange Offer (a “ Participating Broker-Dealer ”), whether such positions or policies have been publicly disseminated by the staff of the Commission or such positions or policies, in the reasonable judgment of the Initial Purchasers based upon advice of counsel (which may be in-house counsel), represent the prevailing views of the staff of the Commission; and (v) in the case of a Shelf Registration Statement, include in the prospectus included in the Shelf

 

5


Registration Statement (or, if permitted by Commission Rule 430B(b), in a prospectus supplement that becomes a part thereof pursuant to Commission Rule 430B(f)) that is delivered to any Holder pursuant to Section 4(d) and (f), the names of the Holders, who propose to sell Securities pursuant to the Shelf Registration Statement, as selling securityholders.

(b) The Company shall give written notice to the Initial Purchasers, the Holders of the Securities and any Participating Broker-Dealer from whom the Company has received prior written notice that it will be a Participating Broker-Dealer in the Registered Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made):

(i) when the Registration Statement or any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;

(ii) of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;

(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, of the issuance by the Commission of a notification of objection to the use of the form on which the Registration Statement has been filed, and of the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Commission Rule 405;

(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

(v) of the happening of any event that requires the Company to make changes in the Registration Statement or the prospectus in order that the Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading.

(c) The Company shall use commercially reasonable efforts to obtain the withdrawal at the earliest possible time, of any order suspending the effectiveness of the Registration Statement.

(d) The Company shall furnish to each Holder of Securities included within the coverage of the Shelf Registration, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment or supplement thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference). The Company shall not, without the prior consent of the Initial Purchasers (which consent shall not be unreasonably withheld, conditioned or delayed), make any offer relating to the Securities that would constitute a “free writing prospectus,” as defined in Commission Rule 405.

(e) The Company shall deliver to each Exchanging Dealer and each Initial Purchaser, and to any other Holder who so requests, without charge, at least one copy of the Exchange Offer Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if any Initial Purchaser or any such Holder requests, all exhibits thereto (including those incorporated by reference).

(f) The Company shall, during the period of effectiveness of the Shelf Registration Statement provided for in Section 3(b), deliver to each Holder of Securities included within the

 

6


coverage of the Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of the Securities in connection with the offering and sale of the Securities covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.

(g) The Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer, without charge, as many copies of the final prospectus included in the Exchange Offer Registration Statement and any amendment or supplement thereto as such persons may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by any Initial Purchaser, if necessary, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer in connection with the offering and sale of the Exchange Securities covered by the prospectus, or any amendment or supplement thereto, included in such Exchange Offer Registration Statement.

(h) Prior to any public offering of the Securities, pursuant to any Registration Statement, the Company shall use commercially reasonable efforts to register or qualify or cooperate with the Holders of the Securities included therein and their respective counsel in connection with the registration or qualification of the Securities for offer and sale under the securities or “blue sky” laws of such states of the United States as any Holder of the Securities reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Registration Statement; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.

(i) The Company shall reasonably cooperate with the Holders of the Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a reasonable period of time prior to sales of the Securities pursuant to such Registration Statement.

(j) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 4(b) above during the period for which the Company is required to maintain an effective Registration Statement, the Company shall promptly prepare and file a post-effective amendment to the Registration Statement or a supplement to the related prospectus and any other required document so that, as thereafter delivered to Holders of the Securities or purchasers of Securities, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Initial Purchasers, the Holders of the Securities and any known Participating Broker-Dealer in accordance with paragraphs (ii) through (v) of Section 4(b) above to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Initial Purchasers, the Holders of the Securities and any such Participating Broker-Dealers shall suspend use of such prospectus, and the period of effectiveness of the Shelf Registration Statement provided for in Section 3(b) above and the Exchange Offer Registration Statement provided for in Section 2 above shall each be extended by the number of days from and including the date of the giving of such notice to and including the date when the Initial Purchasers, the Holders of the Securities and any known Participating Broker-Dealer shall have received such amended or supplemented prospectus pursuant to this Section 4(j). During the period during which the Company is required to maintain an effective Shelf Registration Statement pursuant to this Agreement, the Company will prior to the three-year expiration of that Shelf Registration

 

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Statement file, and use commercially reasonable efforts to cause to be declared effective (unless it becomes effective automatically upon filing) within a period that avoids any interruption in the ability of Holders of Securities covered by the expiring Shelf Registration Statement to make registered dispositions, a new registration statement relating to the Securities, which shall be deemed the “Shelf Registration Statement” for purposes of this Agreement.

(k) Not later than the effective date of the applicable Registration Statement, the Company will provide a CUSIP number for the Exchange Securities or the Private Exchange Securities, as the case may be, and provide the applicable trustee with printed certificates for the Exchange Securities or the Private Exchange Securities, as the case may be, in a form eligible for deposit with The Depository Trust Company.

(l) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Registered Exchange Offer or the Shelf Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the Registration Statement, which statement shall cover such 12-month period.

(m) The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), in a timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.

(n) The Company may require each Holder of Securities to be sold pursuant to the Shelf Registration Statement to furnish to the Company such information regarding the Holder and the distribution of the Securities as the Company may from time to time reasonably require for inclusion in the Shelf Registration Statement, and the Company may exclude from such registration the Securities of any Holder that fails to furnish such information within a reasonable time after receiving such request.

(o) The Company shall enter into such customary agreements (including, if requested, an underwriting agreement in customary form) and take all such other action, if any, as Holders of a majority of the aggregate principal amount of the Transfer Restricted Securities (the “ Required Holders ”) shall reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration; provided that the Company shall not be required to enter into an underwriting agreement (or similar agreement in respect of an underwritten public offering) more than once; provided further that, if the Required Holders shall request that the Company enter into an underwriting agreement (or similar agreement in respect of an underwritten public offering) at a time when another underwritten public offering with respect to the Company’s securities has been commenced and is then continuing, then the Company may delay entry into the requested underwriting agreement until the earlier of (i) the completion of the then existing underwritten public offering or (ii) the 60th day following receipt of such request from the Required Holders.

(p) In the case of any Shelf Registration, the Company shall (i) make reasonably available for inspection by the Holders of the Securities, any underwriter participating in any disposition pursuant to the Shelf Registration Statement and any attorney, accountant or other agent retained by the Holders of the Securities or any such underwriter all relevant financial and other records, pertinent corporate documents and properties of the Company and (ii) cause the Company’s officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders of the Securities or any such underwriter, attorney, accountant or agent in connection with the Shelf Registration Statement, in each case, as shall be reasonably necessary to enable such persons to conduct a reasonable investigation within

 

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the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering shall be coordinated on behalf of the Initial Purchasers by you and on behalf of the other parties by one counsel designated by and on behalf of such other parties as described in Section 5 hereof.

(q) In the case of any Shelf Registration, the Company, if requested by any Holder of Securities covered thereby, shall use its reasonable best efforts to cause (i) its counsel to deliver an opinion in form and substance customary for offerings of such type and reasonably acceptable to such Holders and the managing underwriting, if any, thereof, relating to the Securities and addressed to such Holders and the managing underwriters, if any, thereof and dated the effective date of such Shelf Registration Statement (and, if such Shelf Registration contemplates an underwritten offering, dated the closing date under the underwriting agreement relating thereto); (ii) its officers to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Securities; and (iii) its independent public accountants and the independent public accountants with respect to any other entity for which financial information is provided in the Shelf Registration Statement to provide to the selling Holders of the applicable Securities and any underwriter therefor a comfort letter in customary form and covering matters of the type customarily covered in comfort letters in connection with primary underwritten offerings, subject to receipt of appropriate documentation as contemplated, and only if permitted, by Statement of Auditing Standards No. 72 (or any successor bulletins).

(r) In the case of the Registered Exchange Offer, if requested by any Initial Purchaser or any known Participating Broker-Dealer that is, at the time of such request, holding Initial Securities, the Company shall cause (i) its counsel to deliver to such Initial Purchaser or such Participating Broker-Dealer a signed opinion in the form set forth in Section 7(d) of the Purchase Agreement with such changes as are customary in connection with the preparation of a Registration Statement and (ii) its independent public accountants and the independent public accountants with respect to any other entity for which financial information is provided in the Registration Statement to deliver to such Initial Purchaser or such Participating Broker-Dealer a comfort letter, in customary form, meeting the requirements as to the substance thereof as set forth in Sections 7(a) and 7(b) of the Purchase Agreement with appropriate date changes.

(s) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon delivery of the Initial Securities by Holders to the Company (or to such other Person as directed by the Company) in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be, the Company shall mark, or caused to be marked, on the Initial Securities so exchanged that such Initial Securities are being canceled in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be; in no event shall the Initial Securities be marked as paid or otherwise satisfied.

(t) In the event that any broker-dealer registered under the Exchange Act shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or “assist in the distribution” (within the meaning of the Conduct Rules (the “ Rules ”) of the Financial Industry Regulatory Authority, Inc. (“ FINRA ”)) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company will assist such broker-dealer in complying with the requirements of such Rules, including, without limitation, by (i) if such Rules, including Rule 5121, shall so require, engaging a “qualified independent underwriter” (as defined in Rule 5121) to participate in the preparation of the Registration Statement relating to such Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such Registration Statement is an underwritten offering or is made through a placement or sales agent, to recommend the yield of such Securities, (ii) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 6 hereof and (iii) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the Rules.

 

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(v) The Company shall use commercially reasonable efforts to take all other steps necessary to effect the registration of the Securities covered by a Registration Statement contemplated hereby.

5.  Registration Expenses . The Company shall bear all fees and expenses incurred in connection with the performance of its obligations under Sections 2 through 4 hereof, whether or not the Registered Exchange Offer or a Shelf Registration is filed or becomes effective, and, in the event of a Shelf Registration, shall bear or reimburse the Holders of the Securities covered thereby for the reasonable fees and disbursements of one firm of counsel designated by the Holders of a majority in principal amount of the Initial Securities covered thereby to act as counsel for the Holders of the Initial Securities in connection therewith.

6.  Indemnification . (a) The Company agrees to indemnify and hold harmless each Holder of the Securities, any Participating Broker-Dealer and each person, if any, who controls such Holder or such Participating Broker-Dealer within the meaning of the Securities Act or the Exchange Act (each Holder, any Participating Broker-Dealer and such controlling persons are referred to collectively as the “ Indemnified Parties ”) from and against any losses, claims, damages or liabilities, joint or several, or any actions in respect thereof (including, but not limited to, any losses, claims, damages, liabilities or actions relating to purchases and sales of the Securities) to which each Indemnified Party may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or “issuer free writing prospectus,” as defined in Commission Rule 433 (“ Issuer FWP ”), relating to a Shelf Registration, or arise out of, or are based upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, and shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action in respect thereof; provided, however, that (i) the Company shall not be liable in any such case to the extent that such loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration in reliance upon and in conformity with written information pertaining to such Holder and furnished to the Company by or on behalf of such Holder specifically for inclusion therein and (ii) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder or Participating Broker-Dealer from whom the person asserting any such losses, claims, damages or liabilities purchased the Securities concerned, to the extent that a prospectus relating to such Securities was required to be delivered (including through satisfaction of the conditions of Commission Rule 172) by such Holder or Participating Broker-Dealer under the Securities Act in connection with such purchase and any such loss, claim, damage or liability of such Holder or Participating Broker-Dealer results from the fact that there was not conveyed to such person, at or prior to the time of the sale of such Securities to such person, an amended or supplemented prospectus or, if permitted by Section 4(d), an Issuer FWP correcting such untrue statement or omission or alleged untrue statement or omission if the Company had previously furnished copies thereof to such Holder or Participating Broker-Dealer; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party. The Company shall also indemnify underwriters, their officers and directors and each person who controls such underwriters within the meaning of the Securities Act or the Exchange Act to the same extent as provided above with respect to the indemnification of the Holders of the Securities if requested by such Holders.

(b) Each Holder of the Securities, severally and not jointly, will indemnify and hold harmless the Company and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act from and against any losses, claims, damages or liabilities or any actions in respect thereof, to which the Company or any such controlling person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out

 

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of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, but in each case only to the extent that the untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information pertaining to such Holder and furnished to the Company by or on behalf of such Holder specifically for inclusion therein; and, subject to the limitation set forth immediately preceding this clause, shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, claim, damage, liability or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons.

(c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action or proceeding (including a governmental investigation), such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 6, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action, and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

(d) If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the exchange of the Securities, pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof) as well as any other relevant equitable considerations. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Holder or such other indemnified party, as the case may be, on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred

 

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by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding any other provision of this Section 6(d), the Holders of the Securities shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Holders from the sale of the Securities pursuant to a Registration Statement exceeds the amount of damages which such Holders have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph (d), each person, if any, who controls such indemnified party within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such indemnified party.

(e) The agreements contained in this Section 6 shall survive the sale of the Securities pursuant to a Registration Statement and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party.

7.  Additional Interest Under Certain Circumstances . (a) Additional interest (the “ Additional Interest ”) with respect to the Initial Securities shall be assessed as follows if any of the following events occur (each such event in clauses (i) through (iv) below a “ Registration Default ”):

(i) If an Exchange Offer Registration Statement is required to be filed and it does not become effective by the Effectiveness Deadline;

(ii) If the Registered Exchange Offer is not consummated within 60 days of the effectiveness of the Exchange Offer Registration Statement;

(iii) If an effective Shelf Registration Statement is required to be filed with the Commission but does not become effective within 30 days following the event which required the filing of such Shelf Registration Statement; or

(iv) If after either an Exchange Offer Registration Statement or a Shelf Registration Statement is declared (or becomes automatically) effective (A) such Registration Statement thereafter ceases to be effective or (B) such Registration Statement or the related prospectus ceases to be usable (except as permitted in paragraph (b)) in connection with resales of Transfer Restricted Securities during the periods specified herein because either (1) any event occurs as a result of which the related prospectus forming part of such Registration Statement would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, (2) it shall be necessary to amend such Registration Statement or supplement the related prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, or (3) such Registration Statement is a Shelf Registration Statement that has expired before a replacement Shelf Registration Statement has become effective.

Additional Interest shall accrue on the Initial Securities over and above the interest set forth in the title of such Securities from and including the date on which any such Registration Default shall occur to but excluding the date on which all such Registration Defaults have been cured or the Initial Securities cease to be Transfer Restricted Securities, whichever is earlier, at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default (the “Initial Period”), and such rate will increase by 0.25% per annum on the 91st day following the occurrence of such Registration Default (it being understood and agreed that the maximum Additional Interest rate during the Initial Period shall be 0.25% per annum and the maximum Additional Interest rate thereafter shall be 0.50% per annum, in each case, regardless of the number of Registration Defaults that shall have occurred and be continuing).

(b) A Registration Default referred to in Section 7(a)(iv)(B) hereof shall be deemed not to have occurred and be continuing in relation to a Shelf Registration Statement or the related prospectus if (i) such Registration Default has occurred solely as a result of (x) the filing of a post-effective amendment to such Shelf Registration Statement to incorporate annual audited financial information with respect to the

 

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Company where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus or (y) the occurrence of other material events with respect to the Company that would be required to be disclosed in such Shelf Registration Statement or the related prospectus, and the disclosure of which in such Shelf Registration Statement or the related prospectus would in the good faith determination of the Company (1) interfere with or affect the negotiation or completion of a transaction that is being contemplated by the Company (whether or not a final decision has been made to undertake such transaction) and (2) involve initial or continuing disclosure obligations that are not in the best interest of the Company or its stockholders at such time and (ii) in the case of clause (y), the Company is proceeding in good faith to amend or supplement such Shelf Registration Statement and related prospectus to describe such events; provided, however, that in any case if such Registration Default occurs for a continuous period in excess of 30 days or more than an aggregate of 90 days in any 12-month period, Additional Interest shall be payable in accordance with the above paragraph from the day such Registration Default occurs until such Registration Default is cured.

(c) Any amounts of Additional Interest due pursuant to clause (i), (ii), (iii) or (iv) of Section 7(a) above will be payable in cash on the regular interest payment dates with respect to the Initial Securities. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Initial Securities, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months), and the denominator of which is 360.

(d) “ Transfer Restricted Securities ” means each Security until (i) the date on which such Transfer Restricted Security has been exchanged by a person other than a broker-dealer for a freely transferable Exchange Security in the Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered Exchange Offer of an Initial Security for an Exchange Security, the date on which such Exchange Security is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the Exchange Offer Registration Statement, (iii) the date on which such Initial Security has been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement, (iv) the date on which such Initial Security is distributed to the public pursuant to Rule 144 under the Securities Act or (v) the earliest date that is no less than one year after the Issue Date and on which such Security (except for Securities held by an affiliate of the Company) may be resold in reliance on paragraph (b)(1) of Rule 144 under the Securities Act or (vi) the date on which such Initial Security shall cease to be outstanding.

8.  Rules 144 and 144A . For as long as any Transfer Restricted Securities remain outstanding, the Company will file with the Securities and Exchange Commission (the “SEC”), and transmit to any Holder of Initial Securities, such information, documents and reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act, at the times and in the manner provided pursuant to the Trust Indenture Act. In addition, the Company will furnish to any Holder of Initial Securities and to prospective purchasers of Initial Securities, upon the requests of such Holder, any information required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision) under the Securities Act, so long as the notes are not freely transferable under the Securities Act. The Company will pay the expenses of printing and distributing all such information.

9.  Underwritten Registrations . If any of the Transfer Restricted Securities covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will administer the offering (“ Managing Underwriters ”) will be selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted Securities to be included in such offering.

No person may participate in any underwritten registration hereunder unless such person (i) agrees to sell such person’s Transfer Restricted Securities on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

 

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10.  Miscellaneous .

(a)  Amendments and Waivers . The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, except by the Company and the written consent of the Holders of a majority in principal amount of the Securities affected by such amendment, modification, supplement, waiver or consents.

(b)  Notices . All communications hereunder will be in writing and, if sent to a Holder of the Securities, will be mailed, delivered or telegraphed to the most current address given by such Holder to the Company, or, if sent to the Initial Purchasers, will be mailed, delivered or telegraphed and confirmed to Citigroup Global Markets Inc., 388 Greenwich Street, New York, N.Y. 10013, Attention: General Counsel and Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it care of Express Scripts, Inc., One Express Way, St. Louis, MO 63121, Attention: Keith Ebling, General Counsel; provided, however, that any notice to an Initial Purchaser pursuant to Section 6 will be mailed, delivered or telegraphed and confirmed to such Initial Purchaser.

(c)  No Inconsistent Agreements . The Company has not, as of the date hereof, entered into, nor shall it, on or after the date hereof, enter into, any agreement with respect to its securities that is inconsistent with the rights granted to the Holders herein or otherwise conflicts with the provisions hereof.

(d)  Merger Date Guarantors; Successors and Assigns . This Agreement shall become effective as to, and binding upon, each of the Merger Date Guarantors upon execution and delivery of a Counterpart. Upon execution of a Counterpart, each Merger Date Guarantor agrees to be bound by the terms, conditions and other provisions of this Agreement as described in the Counterpart, with all rights, duties and obligations stated herein, with the same force and effect as if such party had executed this Agreement on the date hereof. This Agreement shall be binding upon the Company and its successors and assigns.

(e)  Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.

(f)  Headings . The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

(g)  Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

(h)  Severability . If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.

(i)  Securities Held by the Company . Whenever the consent or approval of Holders of a specified percentage of principal amount of Securities is required hereunder, Securities held by the Company or its affiliates (other than subsequent Holders of Securities if such subsequent Holders are deemed to be affiliates solely by reason of their holdings of such Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.

 

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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Issuer a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the several Initial Purchasers, the Issuer and the Closing Date Guarantors in accordance with its terms.

 

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Very truly yours,

ARISTOTLE HOLDING, INC.

By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President
EXPRESS SCRIPTS, INC.
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President
AIRPORT HOLDINGS, LLC
ESI REALTY, LLC
By: Express Scripts, Inc., as sole Member
By:  

/s/ George Paz

  Name:   George Paz
  Title:   Chairman, Chief Executive Officer and President


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iBIOLOGIC, INC.

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PRIORITY HEALTHCARE PHARMACY, INC.

PRIORITYHEALTHCARE.COM, INC.

SINUSPHARMACY, INC.

SPECIALTY INFUSION PHARMACY, INC.

SPECTRACARE, INC.

SPECTRACARE HEALTH CARE VENTURES, INC.

SPECTRACARE INFUSION PHARMACY, INC.

VALUE HEALTH, INC.

YOURPHARMACY.COM, INC.

By:

 

/s/ Keith J. Ebling

 

Name:

 

Keith J. Ebling

 

Title:

 

Vice President


CURASCRIPT, INC.

ESI MAIL PHARMACY SERVICE, INC.

EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.

EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.

MOORESVILLE ON-SITE PHARMACY, LLC

By:  

/s/ Patrick McNamee

  Name:   Patrick McNamee
  Title:   President
ESI-GP HOLDINGS, INC.
ESI RESOURCES, INC.
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President
ESI PARTNERSHIP
By: Express Scripts, Inc., as Partner
By:  

/s/ Martin P. Akins

  Name:   Martin P. Akins
  Title:   Vice President and Deputy General
    Counsel
By: ESI-GP Holdings, Inc., as Partner
By:  

/s/ Tom Rocheford

  Name:   Tom Rocheford
  Title:   President


SPECTRACARE OF INDIANA
By: Spectracare, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
By: Care Continuum, Inc., as Partner
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President
EXPRESS SCRIPTS MSA, LLC
EXPRESS SCRIPTS WC, INC.
By:  

/s/ Edward Ignaczak

  Name:   Edward Ignaczak
  Title:   President
EXPRESS SCRIPTS SENIOR CARE, INC.

EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC.

By:  

/s/ George Paz

  Name:   George Paz
  Title:   President
EXPRESS SCRIPTS CANADA HOLDING, LLC
By:  

/s/ Keith J. Ebling

  Name:   Keith J. Ebling
  Title:   Vice President


The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written.

 

Acting on behalf of themselves and as the Representatives of the Initial Purchasers

 

CITIGROUP GLOBAL MARKETS INC.

By:

 

/s/ Brian D. Bednarski

  Name:   Brian D. Bednarski
 

Title:

 

Managing Director


 

CREDIT SUISSE SECURITIES (USA) LLC

By:

 

/s/ Michael Muntner

 

Name:

 

Michael Muntner

 

Title:

 

Managing Director


ANNEX A

Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date (as defined herein), it will make this Prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”


ANNEX B

Each broker-dealer that receives Exchange Securities for its own account in exchange for Initial Securities, where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. See “Plan of Distribution.”


ANNEX C

PLAN OF DISTRIBUTION

Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date, it will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until                     , 20    , all dealers effecting transactions in the Exchange Securities may be required to deliver a prospectus. ( 1 )

The Company will not receive any proceeds from any sale of Exchange Securities by broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Securities may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of Exchange Securities and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.

For a period of 180 days after the Expiration Date the Company will promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the Exchange Offer other than commissions or concessions of any brokers or dealers and will indemnify the Holders of the Securities (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.

 

 

( 1 )  

In addition, the legend required by Item 502(e) of Regulation S-K will appear on the back cover page of the Exchange Offer prospectus.


ANNEX D

¨ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.

 

Name:

 

 

Address:

 

 

 

 

If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a broker-dealer that will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.


Exhibit A

Counterpart to Registration Rights Agreement

Each signatory hereto (a “ Merger Date Guarantor ”) hereby agrees to join and become a party to the Registration Rights Agreement, dated as of February 9, 2012, among Aristotle Holding, Inc. (the “ Issuer ”) the Guarantors (as defined therein) party thereto and Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as representatives of the Initial Purchasers (as defined therein), in respect of the Issuer’s 3.900% Senior Notes due 2022 (the “ Registration Rights Agreement ”), as of the execution and delivery of this counterpart as though it had entered into the Registration Rights Agreement on February 9, 2012. Each Merger Date Guarantor hereby further agrees, effective upon the execution and delivery of this counterpart, to be bound by all of the covenants, agreements and obligations of the “Company” or of a “Guarantor” under the Registration Rights Agreement. For the avoidance of doubt, such covenants, agreements and obligations shall include, but not be limited to, the obligations enumerated in Sections 2, 3, 4, 5, 6, 8 and 10 of the Registration Rights Agreement.

 

Dated:    


[ Name of Guarantor ]

By:

 

 

 

Name:

 
 

Title:

 

Exhibit 99.1

 

LOGO

Contact:

Jeff Hall, Chief Financial Officer

David Myers, Vice President, Investor Relations

(314) 810-3115

Express Scripts, Inc. Announces Pricing of $3.5 Billion Senior Notes Offering

ST. LOUIS, February 6, 2012 — Express Scripts, Inc. (Nasdaq: ESRX) announced today that its wholly owned subsidiary, Aristotle Holding, Inc., a Delaware corporation (“Aristotle”), has successfully priced a private offering of senior notes consisting of $1.0 billion aggregate principal amount of 2.10% senior notes due 2015, $1.5 billion aggregate principal amount of 2.65% senior notes due 2017 and $1.0 billion aggregate principal amount of 3.90% senior notes due 2022. The offering is expected to close on February 9, 2012, subject to customary closing conditions. The net proceeds from the offering will be used to pay a portion of the cash consideration payable to stockholders of Medco Health Solutions, Inc. (“Medco”) in connection with the previously announced merger pursuant to which Express Scripts and Medco will each become wholly owned subsidiaries of Aristotle (the “Merger”), to repay any existing indebtedness that will be repaid in connection with the Merger and to pay related fees and expenses. Commitments under the unsecured bridge term loan facility that Express Scripts and Aristotle entered into in connection with the financing of the Merger will automatically be reduced dollar-for-dollar by the net proceeds from the sale of the senior notes. Aristotle will be required to redeem the notes in the event that the Merger does not occur. Following the Merger, Aristotle will be renamed “Express Scripts Holding Company” and will become a publicly traded corporation, Medco and Express Scripts will each become wholly owned subsidiaries of Aristotle and former Medco and Express Scripts stockholders will own stock in Aristotle.

The notes will be jointly and severally and fully and unconditionally guaranteed on a senior basis by Express Scripts, certain of Express Scripts’ current wholly owned domestic subsidiaries and certain of Aristotle’s future wholly owned domestic subsidiaries, including, following consummation of the Merger, Medco and certain of its wholly owned domestic subsidiaries.

The notes and the related guarantees have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and may not be offered or sold in the United States or to, or for the account or benefit of, U.S. persons without registration or an applicable exemption from the registration requirements of the Securities Act. This press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the notes and the related guarantees in any jurisdiction in which such offer, solicitation or sale would be unlawful.


The notes and the related guarantees are being offered and sold only (i) to persons in the United States and to, or for the account or benefit of, U.S. persons, in each case that are qualified institutional buyers in accordance with Rule 144A under the Securities Act and (ii) to non-U.S. persons outside the United States in accordance with Regulation S under the Securities Act.

* * *

FORWARD LOOKING STATEMENTS

Cautionary Note Regarding Forward-Looking Statements

This material may include forward-looking statements, both with respect to us and our industry, that reflect our current views with respect to future events and financial performance. Statements that include the words “expect,” “intend,” “plan,” “believe,” “project,” “anticipate,” “will,” “may,” “would” and similar statements of a future or forward-looking nature may be used to identify forward-looking statements. All forward-looking statements address matters that involve risks and uncertainties, many of which are beyond our control. Accordingly, there are or will be important factors that could cause actual results to differ materially from those indicated in such statements and, therefore, you should not place undue reliance on any such statements. We believe that these factors include, but are not limited to, the following:

STANDARD OPERATING FACTORS

 

   

Our ability to remain profitable in a very competitive marketplace is dependent upon our ability to attract and retain clients while maintaining our margins, to differentiate our products and services from others in the marketplace, and to develop and cross sell new products and services to our existing clients;

 

   

Our failure to anticipate and appropriately adapt to changes in the rapidly changing health care industry;

 

   

Changes in applicable laws or regulations, or their interpretation or enforcement, or the enactment of new laws or regulations, which apply to our business practices (past, present or future) or require us to spend significant resources in order to comply;

 

   

Changes to the healthcare industry designed to manage healthcare costs or alter healthcare financing practices;

 

   

Changes relating to our participation in Medicare Part D, the loss of Medicare Part D eligible members, or our failure to otherwise execute on our strategies related to Medicare Part D;

 

   

A failure in the security or stability of our technology infrastructure, or the infrastructure of one or more of our key vendors, or a significant failure or disruption in service within our operations or the operations of such vendors;

 

   

Our failure to effectively execute on strategic transactions, or to integrate or achieve anticipated benefits from any acquired businesses;

 

   

The termination, or an unfavorable modification, of our relationship with one or more key pharmacy providers, or significant changes within the pharmacy provider marketplace;

 

   

The termination, or an unfavorable modification, of our relationship with one or more key pharmaceutical manufacturers, or the significant reduction in payments made or discounts provided by pharmaceutical manufacturers;

 

   

Changes in industry pricing benchmarks;


   

Results in pending and future litigation or other proceedings which would subject us to significant monetary damages or penalties and/or require us to change our business practices, or the costs incurred in connection with such proceedings;

 

   

Our failure to execute on, or other issues arising under, certain key client contracts;

 

   

The impact of our debt service obligations on the availability of funds for other business purposes, and the terms and our required compliance with covenants relating to our indebtedness;

 

   

Our failure to attract and retain talented employees, or to manage succession and retention for our Chief Executive Officer or other key executives;

TRANSACTION-RELATED FACTORS

 

   

Uncertainty as to whether Express Scripts will be able to consummate the Merger on the terms set forth in the merger agreement or at all;

 

   

Uncertainty as to our ability to close the offering of the notes;

 

   

The ability to obtain governmental approvals of the Merger;

 

   

Uncertainty as to the market value of the stock of Aristotle to be used as consideration for the Merger;

 

   

Failure to realize the anticipated benefits of the Merger, including as a result of a delay in completing the Merger or a delay or difficulty in integrating the businesses of Express Scripts and Medco;

 

   

Uncertainty as to the long-term value of Aristotle (which will be renamed Express Scripts Holding Company) common shares;

 

   

Uncertainty as to whether Express Scripts will be able to reduce its leverage and service its debt obligations in a timely manner; and

 

   

The expected amount and timing of cost savings and operating synergies.

The foregoing review of important factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included herein and elsewhere, including the risk factors included in Express Scripts’ most recent reports on Form 10-K and Form 10-Q and the risk factors included in Medco’s most recent reports on Form 10-K and Form 10-Q and other documents of Express Scripts, Aristotle and Medco on file with the Securities and Exchange Commission (“SEC”). Any forward-looking statements made in this material are qualified in their entirety by these cautionary statements, and there can be no assurance that the actual results or developments anticipated by us will be realized or, even if substantially realized, that they will have the expected consequences to, or effects on, us or our business or operations. Except to the extent required by applicable law, we undertake no obligation to update publicly or revise any forward-looking statement, whether as a result of new information, future developments or otherwise.