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): June 5, 2014
EXPRESS SCRIPTS HOLDING COMPANY
(Exact name of registrant as specified in its charter)
| Delaware | 001-35490 | 45-2884094 | ||
| (State or other jurisdiction | (Commission | (I.R.S. Employer | ||
| of incorporation) | File Number) | 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
No change since last report
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 | 1 | |||||
| Item 2.03 | 2 | |||||
| Item 9.01. | 2 | |||||
| SIGNATURES | 5 | |||||
| EXHIBIT INDEX | 6 | |||||
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| Item 1.01 | Entry into a Material Definitive Agreement |
(a) Supplemental Indentures
On June 5, 2014, Express Scripts Holding Company (the “Company”), certain subsidiaries of the Company named therein (the “Subsidiary Guarantors”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”), entered into an Eleventh Supplemental Indenture (the “Eleventh Supplemental Indenture”) to the Indenture dated November 21, 2011 (the “Base Indenture”), among the Company, certain subsidiaries of the Company named therein and the Trustee. The Eleventh Supplemental Indenture relates to the Company’s 1.25% Senior Notes due 2017 (the “2017 Notes”). On June 5, 2014, the Company issued and sold $500 million aggregate principal amount of the 2017 Notes in a public offering pursuant to the Company’s Registration Statement on Form S-3 (No. 333-196442) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”). The Eleventh Supplemental Indenture includes the form of the 2017 Notes. The 2017 Notes will pay interest semiannually on June 2 and December 2, beginning on December 2, 2014 at a rate of 1.25% per annum until June 2, 2017.
On June 5, 2014, the Company, the Subsidiary Guarantors and the Trustee entered into a Twelfth Supplemental Indenture (the “Twelfth Supplemental Indenture”) to the Base Indenture. The Twelfth Supplemental Indenture relates to the Company’s 2.25% Senior Notes due 2019 (the “2019 Notes”). On June 5, 2014, the Company issued and sold $1 billion aggregate principal amount of the 2019 Notes in a public offering pursuant to the Registration Statement filed with the Commission. The Twelfth Supplemental Indenture includes the form of the 2019 Notes. The 2019 Notes will pay interest semiannually on June 15 and December 15, beginning on December 15, 2014 at a rate of 2.25% per annum until June 15, 2019.
On June 5, 2014, the Company, the Subsidiary Guarantors and the Trustee entered into a Thirteenth Supplemental Indenture (the “Thirteenth Supplemental Indenture”) to the Base Indenture. The Thirteenth Supplemental Indenture relates to the Company’s 3.50% Senior Notes due 2024 (the “2024 Notes”). On June 5, 2014, the Company issued and sold $1 billion aggregate principal amount of the 2024 Notes in a public offering pursuant to the Registration Statement filed with the Commission. The Thirteenth Supplemental Indenture includes the form of the 2024 Notes. The 2024 Notes will pay interest semiannually on June 15 and December 15, beginning on December 15, 2014 at a rate of 3.50% per annum until June 15, 2024.
The Company intends to use the net proceeds from the sale of the 2017 Notes, the 2019 Notes and the 2024 Notes (collectively, the “Notes”) (i) to pay in full the Company’s outstanding 2.750% Senior Notes due 2014 at their maturity on November 15, 2014, (ii) to redeem all of the Company’s outstanding 3.500% Senior Notes due 2016 and (iii) for general corporate purposes, which may include repurchases of the Company’s common stock under its share repurchase program pursuant to open market transactions, block trades, privately negotiated transactions or other means or a combination of the aforementioned. Pending such uses, the Company will hold the proceeds of the Notes in the form of U.S. Treasury securities and other highly liquid instruments. On June 5, 2014, the Company issued a notice of redemption in respect of its 3.500% Senior Notes due 2016.
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(b) Underwriting Agreement
On June 2, 2014, the Company and the Subsidiary Guarantors entered into an Underwriting Agreement (the “Underwriting Agreement”) with Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and RBS Securities Inc., as representatives of the several Underwriters listed on Schedule A thereto, relating to the sale by the Company of $500 million aggregate principal amount of the 2017 Notes, $1 billion aggregate principal amount of the 2019 Notes and $1 billion aggregate principal amount of the 2024 Notes.
Some of the underwriters or their affiliates have provided investment or commercial banking services to the Company or its affiliates in the past and are likely to do so in the future. In addition, the Trustee’s affiliate, Wells Fargo Securities, LLC, has, from time to time, performed, and may in the future perform, various financial advisory and investment banking services for the Company and its affiliates, for which they have received or will receive customary fees and expenses.
The Underwriting Agreement is filed herewith as Exhibit 1.1, the Eleventh Supplemental Indenture is filed herewith as Exhibit 4.1, the Twelfth Supplemental Indenture is filed herewith as Exhibit 4.2 and the Thirteenth Supplemental Indenture is filed herewith as Exhibit 4.3. The descriptions of the Underwriting Agreement, the Eleventh Supplemental Indenture, the Twelfth Supplemental Indenture and the Thirteenth Supplemental Indenture herein are qualified by reference thereto.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant |
The information included in Item 1.01(a) above is incorporated by reference into this Item 2.03.
| Item 9.01. | Financial Statements and Exhibits |
(d) Exhibits
In reviewing the Underwriting Agreement included as Exhibit 1.1 to this report, please remember it is included to provide you with information regarding its terms and is not intended to provide any other factual disclosure information about the Company or the other parties to the agreement. The Underwriting Agreement contains representations and warranties by each of the parties to the agreement. These representations and warranties have been made solely for the benefit of the other parties to the agreement and:
| • | should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; |
| • | may have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement; |
| • | may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and |
| • | were made only as of the date of the agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments. |
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Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about the Company may be found elsewhere in this report and the Company’s other public filings, which are available without charge through the Commission’s website at http://www.sec.gov.
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|
Exhibit No. |
Description |
|
| 1.1 | Underwriting Agreement, dated June 2, 2014, among the Company, the Guarantors and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and RBS Securities Inc., as representatives of the several underwriters named therein. | |
| 4.1 | Eleventh Supplemental Indenture, dated as of June 5, 2014, among the Company, the Subsidiary Guarantors party thereto and Wells Fargo Bank, National Association, as Trustee. | |
| 4.2 | Twelfth Supplemental Indenture, dated as of June 5, 2014, among the Company, the Subsidiary Guarantors party thereto and Wells Fargo Bank, National Association, as Trustee. | |
| 4.3 | Thirteenth Supplemental Indenture, dated as of June 5, 2014, among the Company, the Subsidiary Guarantors party thereto and Wells Fargo Bank, National Association, as Trustee. | |
| 5.1 | Opinion Letter of Skadden, Arps, Slate, Meagher & Flom LLP regarding the validity of the Notes. | |
| 23.1 | Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). | |
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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 thereunto duly authorized.
| EXPRESS SCRIPTS HOLDING COMPANY | ||||
| (Registrant) | ||||
| By: |
/s/ Keith J. Ebling |
|||
| Name: | Keith J. Ebling | |||
| Title: | Executive Vice President and | |||
| General Counsel | ||||
Dated: June 5, 2014
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|
Exhibit No. |
Description |
|
| 1.1 | Underwriting Agreement, dated June 2, 2014, among the Company, the Guarantors and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and RBS Securities Inc., as representatives of the several underwriters named therein. | |
| 4.1 | Eleventh Supplemental Indenture, dated as of June 5, 2014, among the Company, the Subsidiary Guarantors party thereto and Wells Fargo Bank, National Association, as Trustee. | |
| 4.2 | Twelfth Supplemental Indenture, dated as of June 5, 2014, among the Company, the Subsidiary Guarantors party thereto and Wells Fargo Bank, National Association, as Trustee. | |
| 4.3 | Thirteenth Supplemental Indenture, dated as of June 5, 2014, among the Company, the Subsidiary Guarantors party thereto and Wells Fargo Bank, National Association, as Trustee. | |
| 5.1 | Opinion Letter of Skadden, Arps, Slate, Meagher & Flom LLP regarding the validity of the Notes. | |
| 23.1 | Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). | |
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Exhibit 1.1
EXPRESS SCRIPTS HOLDING COMPANY
$500,000,000 1.25% Senior Notes Due 2017
$1,000,000,000 2.25% Senior Notes Due 2019
$1,000,000,000 3.50% Senior Notes Due 2024
UNDERWRITING AGREEMENT
June 2, 2014
C ITIGROUP G LOBAL M ARKETS I NC .,
388 Greenwich Street,
New York, NY 10013
C REDIT S UISSE S ECURITIES (USA) LLC,
Eleven Madison Avenue,
New York, NY 10010-3629
D EUTSCHE B ANK S ECURITIES I NC .
60 Wall Street
New York, NY 10005
RBS S ECURITIES I NC .
600 Washington Boulevard
Stamford, CT 06901
As representatives (the “ Representatives ”) of the Several Underwriters
Dear Sirs:
1. Introductory. Express Scripts Holding Company, a Delaware corporation (the “ Company ”), agrees with the several Underwriters named in Schedule A hereto (the “ Underwriters ”) to issue and sell to the Underwriters $500,000,000 aggregate principal amount of its 1.25% Senior Notes due 2017 (the “ 2017 Notes ”), $1,000,000,000 aggregate principal amount of its 2.25% Senior Notes due 2019 (the “ 2019 Notes ”) and $1,000,000,000 aggregate principal amount of its 3.50% Senior Notes due 2024 (the “ 2024 Notes ” and, together with the 2017 Notes and the 2019 Notes, the “ Offered Securities ”). The Offered Securities will be unconditionally guaranteed (the “ Guarantees ”) by the Guarantors (as defined below) and any other entity that becomes a guarantor of the Offered Securities following the Closing Date (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 hereto (collectively, the “ 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 ”).
2. Representations and Warranties of the Company and the Guarantors . The Company and each Guarantor jointly and severally represents and warrants to, and agrees with, the Underwriters that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms . The Company has filed with the Commission an automatic shelf registration statement as defined under Rule 405 of the Act (as defined below) on Form S-3 (No. 333-196442), including a related prospectus or prospectuses, covering the registration of the Offered Securities under the Act, including a related preliminary prospectus or prospectuses, which became effective upon filing. “ Registration Statement ” at any particular time means such registration statement, in the form
then filed with the Commission, including any amendment thereto, any document incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement, that in any case has not then been superseded or modified. “ Registration Statement ” without reference to a time means the Registration Statement as of the Effective Time. For purposes of this definition, 430B Information shall be considered to be included in the Registration Statement as of the time specified in Rule 430B.
For purposes of this Agreement:
“ 430B Information ” means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
“ 430C Information ” means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430C.
“ Act ” means the Securities Act of 1933, as amended.
“ Applicable Time ” means 4:00 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.
“ Effective Time ” of the Registration Statement relating to the Offered Securities means the time of the first contract of sale for the Offered Securities.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Final Prospectus ” means the Statutory Prospectus that discloses the public offering price, other 430B Information and other final terms of the Offered Securities and otherwise satisfies Section 10(a) of the Act and any document incorporated by reference therein.
“ General Use Issuer Free Writing Prospectus ” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule C hereto.
“ Issuer Free Writing Prospectus ” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Offered Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“ Limited Use Issuer Free Writing Prospectus ” means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
“ Rules and Regulations ” means the rules and regulations of the Commission.
“ Securities Laws ” means, collectively, the Sarbanes-Oxley Act of 2002, as amended (“ Sarbanes-Oxley ”), the 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 (the “ Exchange Rules ”).
“ Statutory Prospectus ” with reference to any particular time means the prospectus relating to the Offered Securities that is included in the Registration Statement immediately prior to that time, including any document incorporated by reference therein and all 430B Information and all 430C Information with respect to the Registration Statement. For purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
“ 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 Act.
(b) Compliance with Securities Act Requirements . (i) (A) At the time the Registration Statement initially became effective, (B) at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by post-effective amendment, incorporated report or form of prospectus), (C) at the Effective Time relating to the Offered Securities and (D) on the Closing Date, the Registration Statement conformed and will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations and did not and 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 not misleading and (ii) on its date, at the time of filing of the Final Prospectus pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations and 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. The preceding sentence does not apply to (i) that part of the Registration Statement which will constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements in or omissions from any such document based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof. Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the General Disclosure Package and the Final Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder.
(c) Automatic Shelf Registration Statement . (i) Well-Known Seasoned Issuer Status . (A) At the time of initial filing of the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Offered Securities in reliance on the exemption of Rule 163, the Company was a “well known seasoned issuer” as defined in Rule 405, including not having been an “ineligible issuer” as defined in Rule 405.
(ii) Effectiveness of Automatic Shelf Registration Statement . The Registration Statement is an “automatic shelf registration statement”, as defined in Rule 405, that initially became effective within three years of the date of this Agreement.
(iii) Eligibility to Use Automatic Shelf Registration Form . The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to the use of the automatic shelf registration statement form. If at any time when Offered Securities remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Offered Securities, in a form reasonably satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable, and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the
public offering and sale of the Offered Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
(iv) Required Filings . The Company has timely made all filings required to be made by it under the Exchange Act that are necessary to meet the eligibility requirements of Form S-3.
(v) Filing Fees . The Company has paid or shall pay the required Commission filing fees relating to the Offered Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) Ineligible Issuer Status . (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Offered Securities and (ii) at the date of this Agreement, the Company was not and is not an “ineligible issuer”, as defined in Rule 405.
(e) General Disclosure Package . As of the Applicable Time, neither (i) the General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the preliminary prospectus supplement, dated June 2, 2014, including the base prospectus, dated June 2, 2014 (which is the most recent Statutory Prospectus distributed to investors generally) and the other information, if any, stated in Schedule C to this Agreement to be included in the General Disclosure Package, all considered together (collectively, the “ General Disclosure Package ”), nor (ii) any individual Limited Use Issuer Free Writing Prospectus (including each electronic road show), 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 sentence does not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
(f) Issuer Free Writing Prospectuses . Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Offered Securities or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (i) the Company has promptly notified or will promptly notify the Representatives and (ii) the Company has promptly amended or supplemented or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
(g) 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 the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business (a “ Material Adverse Effect ”).
(h) Guarantor Good Standing . Each 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 Guarantor has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each Guarantor is owned free from liens, encumbrances and defects.
(i) Execution and Delivery of Base Indenture; Supplemental Indentures; Guarantees; Offered Securities . The Base Indenture and the Supplemental Indentures have been duly authorized by the Company and each Guarantor and on the Closing Date (when the Offered Securities are delivered and paid for pursuant to this Agreement), the Indenture will have been duly executed and delivered by the Company and each Guarantor and will constitute the valid and legally binding obligations of the Company and each Guarantor, as applicable, enforceable in accordance with its 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 Guarantees to be provided by the Guarantors have been duly authorized by each 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 Guarantors will constitute valid and legally binding obligations of the Company and each 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; 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 contained in the Final Prospectus.
(j) 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.
(k) No Finder’s Fee . Except as disclosed in the General Disclosure Package and the Final Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(l) Registration Rights . Except as disclosed in the General Disclosure Package and the Final Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities with the securities registered pursuant to a Registration Statement.
(m) 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 Indenture, the Offered Securities, the Guarantees or the consummation by the Company or the Guarantors of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained or made and such as may be required under state securities laws.
(n) Title to Property . The Company and each 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 and the Final Prospectus 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 and the Final Prospectus, 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.
(o) 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 and this Agreement and compliance with the terms and provisions thereof, the consummation of the transactions herein and therein contemplated, the issuance and sale of the Offered Securities and the issuance of the 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 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.
(p) Absence of Existing Defaults and Conflicts . None of the Company or any 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.
(q) Authorization of this Agreement . This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor.
(r) Possession of Licenses and Permits . The Company and each 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.
(s) Accurate Disclosure . The statements in the General Disclosure Package and the Final Prospectus under the headings “Description of the Notes”, “Description of Other Indebtedness” and “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 and present the information required to be shown.
(t) Absence of Manipulation . None of the Company or any 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.
(u) Internal Controls and Compliance with the Sarbanes-Oxley Act . Except as set forth in the General Disclosure Package and the Final Prospectus, (i) the Company, its subsidiaries and its Board of Directors (the “ Board ”) are in compliance in all material respects with Sarbanes-Oxley and all applicable Exchange Rules. The Company maintains a system 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. The Company’s Internal Control over financial reporting is effective, and the Company is not aware of any material weakness in the Company’s Internal Control over financial reporting. Except as disclosed in the General Disclosure Package and the Final Prospectus, since December 31, 2013, there has been no change in the Company’s Internal Control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s Internal Control over financial reporting. The Company maintains “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 the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within the Company; and such disclosure controls and procedures are effective.
(v) Litigation . Except as disclosed in the General Disclosure Package and the Final Prospectus, 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 the Company or any of its subsidiaries or any of their respective properties that, if determined adversely to the Company 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) or this Agreement; 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.
(w) Medicare; Medicaid . Except as disclosed in the General Disclosure Package and the Final Prospectus, none of the Company or any Guarantor has received written notice of any, and to the knowledge of the Company 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 or any Guarantor.
(x) Financial Statements . The Company’s financial statements included or incorporated by reference in the Registration Statement, the Final Prospectus and the General Disclosure Package together with the related schedules and notes present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of 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 and the schedules included or incorporated by reference in the Registration Statement, the Final Prospectus and the General Disclosure Package present fairly the information required to be stated therein.
(y) Capitalization . The stockholder’s equity, cash and cash equivalents and long-term indebtedness of the Company as of March 31, 2014 was as set forth in the General Disclosure Package and the Final Prospectus in the column entitled “Actual” under the caption “Capitalization”; and there has not been (i) any subsequent issuance of capital stock of the Company, except for subsequent issuances, if any, pursuant to any outstanding securities, benefit or compensation plans disclosed in the General Disclosure Package and the Final Prospectus 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 and the Final Prospectus or under instruments outstanding as of March 31, 2014.
(z) No Material Adverse Change in Business . Except as disclosed in the General Disclosure Package and the Final Prospectus, since the end of the period covered by the latest financial statements included or incorporated by reference in the General Disclosure Package and the Final Prospectus (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 the Company and its subsidiaries, taken as a whole, that is material and adverse, (ii) except as disclosed in or contemplated by the General Disclosure Package and the Final Prospectus, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock and (iii) except as disclosed in or contemplated by the General Disclosure Package and the Final Prospectus, there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company or any of its subsidiaries.
(aa) Investment Company Act. The Company 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 and the Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940 (the “ Investment Company Act ”).
(bb) No Unlawful Payments . Neither the Company nor any of its subsidiaries nor any director, officer, nor to the Company’s knowledge, any agent, employee or affiliate of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; or (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder or the U.K. Bribery Act of 2010 or similar law of any other relevant jurisdiction. The Company and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain policies and procedures designed to promote and achieve compliance with such laws.
(cc) Money Laundering Laws . The operations of the Company 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 the Company and its subsidiaries 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 the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(dd) Compliance with OFAC . None of the Company, any of its subsidiaries or any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently the subject of any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”) or the U.S. Department of State; 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, any joint venture partner or any other person or entity, for the purpose of financing the activities of any person or entity, or in any country or territory, that, at the time of such financing, is the subject of any U.S. sanctions administered or enforced by the United States (including any sanctions administered or enforced by OFAC, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department of Commerce).
(ee) Information Incorporated by Reference . The interactive data in XBRL included or incorporated by reference in the Registration Statement, any Statutory Prospectus and the General Disclosure Package fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
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 Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of (i) 99.562% of the principal amount thereof of the 2017 Notes, the respective principal amounts of the 2017 Notes set forth opposite the names of the Underwriters in Schedule A hereto, (ii) 99.159% of the principal amount thereof of the 2019 Notes, the respective principal amounts of the 2019 Notes set forth opposite the names of the Underwriters in Schedule A hereto and (iii) 98.622% of the principal amount thereof of the 2024 Notes, the respective principal amounts of the 2024 Notes set forth opposite the names of the Underwriters in Schedule A hereto. The terms of the Offered Securities are as set forth in the General Disclosure Package.
The Company will deliver the Offered Securities to or as instructed by the Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the Representatives against payment of the purchase price by the Underwriters 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 June 5, 2014, 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 ”. For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the offering. The Offered Securities so to be delivered or evidence of their issuance will be made available for checking at the above office of Cravath, Swaine & Moore LLP at least 24 hours prior to the Closing Date.
4. Offering by Underwriters . It is understood that the several Underwriters propose to offer the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company . The Company covenants and agrees with the several Underwriters that:
(a) Filing of Prospectuses . The Company has filed or will file each Statutory Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule 424, within the time period prescribed. The Company has complied and will comply with Rule 433.
(b) Filing of Amendments; Response to Commission Requests . Prior to the termination of the offering of the Offered Securities, the Company will promptly advise the Representatives of any proposal to amend or supplement the Registration Statement or Statutory Prospectus at any time and will offer the Representatives a reasonable opportunity to comment on any such amendment or supplement; and the Company will also advise the Representatives promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws . If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the Act by any Underwriter or dealer, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or 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 the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Representatives, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof.
(d) Rule 158 . As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(e) Furnishing of Prospectuses . The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any Statutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) 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 Underwriters; 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.
(g) 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, including but not limited to any expenses (including reasonable fees and disbursements of counsel to the Underwriters) 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, 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, sale or registration of the Offered Securities, and expenses incurred in printing and distributing this Agreement, the Offered Securities, the Indenture, the General Disclosure Package and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses incurred for printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors.
(h) 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 the Final Prospectus 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 Underwriter.
(i) Absence of Manipulation . Neither the Company nor any 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.
(j) Restriction on Sale of Securities . Neither the Company nor any Guarantor will offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to United States dollar-denominated debt securities issued or guaranteed by the Company or any 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 90 days after the Closing Date.
6. Free Writing Prospectuses . (a) Issuer Free Writing Prospectuses . The Company and each Guarantor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission, other than (i) the General Use Issuer Free Writing Prospectuses listed in Schedule C hereto, (ii) the term sheets prepared pursuant to clause (b) below and (iii) electronic road shows, if any, furnished to the Representatives before use. Any such free writing prospectus consented to by the Company and the Representatives (including those referred to in clauses (i), (ii) and (iii) above) is hereinafter referred to as a “ Permitted Free Writing Prospectus ”. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus”, as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
(b) Term Sheets . The Company will prepare final term sheets relating to the Offered Securities, containing only information that describes the final terms of the Offered Securities and otherwise in a form consented to by the Representatives, and will file such final term sheets within the period required by Rule 433(d)(5)(ii) following the date such final terms have been established for all classes of the offering of the Offered Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(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 final term sheets of the Company contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information”, as defined in Rule 433, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement.
7. Conditions of the Obligations of the Underwriters . The obligations of the Underwriters 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 Guarantors herein (as though made on the Closing Date), to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company and each Guarantor of its obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter . The Underwriters shall have received letters, dated, respectively, the date hereof and the Closing Date, of PricewaterhouseCoopers LLP, confirming that they are a registered public accounting firm and independent public accountants with respect to the Company, within the meaning of the Securities Laws and substantially in the form of Schedule D hereto (except that, in any letter dated the Closing Date, the specified date referred to in Schedule D hereto shall be a date no more than three days prior to the Closing Date).
(b) Filing of Prospectus . The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, shall be contemplated by the Commission.
(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 the Company and its subsidiaries taken as a whole 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 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 (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) any suspension of trading of any securities of the Company 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 Guarantors . The Underwriters 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 Guarantors, in form and substance reasonably satisfactory to the Representatives.
(e) Opinion of General Counsel. The Underwriters shall have received an opinion, dated the Closing Date, of Keith Ebling, General Counsel of the Company, in form and substance reasonably satisfactory to the Representatives.
(f) Opinions of Local Counsel for the Guarantors . The Underwriters shall have received opinions, dated the Closing Date, of local counsel for the Guarantors, substantially in the form set forth in Schedule E hereto.
(g) Opinion of Regulatory Counsel . The Underwriters shall have received an opinion, dated the Closing Date, of Holland & Knight LLP, special regulatory counsel of the Company, to the effect the statements in the General Disclosure Package and Final Prospectus (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 Underwriters. The Representatives shall have received from Cravath, Swaine & Moore LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Representatives 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 Representatives shall have received a certificate, dated the Closing Date, of an executive officer of the Company and a principal financial or accounting officer of the Company in which such officers shall state that: (A) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct; (B) the Company and the 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; (C) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the their knowledge and after reasonable investigation, are threatened by the Commission; and (D) 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 and the Final Prospectus.
(j) Indenture . The Indenture shall have been duly executed and delivered, and the Underwriters shall have received copies, conformed and executed thereof.
The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Underwriters reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder.
8. Indemnification and Contribution . (a) Indemnification of the Underwriters . Each of the Company and the Guarantors jointly and severally will indemnify and hold harmless each Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the 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 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) (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time or the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Statutory Prospectus as of any time, the Final Prospectus, any Issuer Free Writing Prospectus or the General Disclosure Package, or 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 in each case 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 furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below.
(b) Indemnification of the Company . Each Underwriter will severally and not jointly indemnify and hold harmless the Company, each of the Guarantors, each of their respective directors and each of their respective officers who signs a Registration Statement and each person, if any, who controls the Company or any Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “ Underwriter Indemnified Party ”), against any and all losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become subject, under the 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) (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time or the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Statutory Prospectus as of any time, the Final Prospectus, any Issuer Free Writing Prospectus or the General Disclosure Package, or 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 Underwriter through the Representatives specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Underwriter 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 Underwriter 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 Underwriter consists of the following information in the Statutory Prospectus and Final Prospectus furnished on behalf of each Underwriter: the sentences related to concessions and reallowances, the last paragraph under “Underwriting” in the Final Prospectus and the paragraphs related to market-making, stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids.
(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.
(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 Underwriters 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 Underwriters 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 Underwriters 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 underwriting discounts and commissions received by the Underwriters. 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 Underwriters 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 Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter 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 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. The Company, the Guarantors and the Underwriters 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 Underwriters 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 Underwriters . If any Underwriter or Underwriters default in their obligations to purchase Offered Securities hereunder on the Closing Date and the aggregate principal amount of Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total principal amount of Offered Securities that the Underwriters 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 Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase on the Closing Date. If any Underwriter or Underwriters 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 Underwriters 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 Underwriter or the Company, except as provided in Section 10. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations . The respective indemnities, agreements, representations, warranties and other statements of the Company, the Guarantors and their respective officers and of the Underwriters 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 Underwriter, the Company, the 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 Underwriters 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 Underwriters 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 Guarantor and the Underwriters pursuant to Section 8 hereof shall remain in effect. In addition, if any Offered Securities have been purchased hereunder, the representations and warranties in Section 2 and all obligations under Section 5 shall also remain in effect.
11. Notices . All communications hereunder will be in writing and, if sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed to Citigroup Global Markets Inc., 388 Greenwich Street, New York, NY 10013, Attention: General Counsel; Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, NY 10010-3629, Attention: LCD-IBD; Deutsche Bank Securities Inc., 60 Wall Street, New York, New York 10005, attention: Debt Capital Markets/Syndicate (Fax: (212) 797-2202), with a copy to General Counsel (Fax: (212) 797-4561); RBS Securities Inc., 600 Washington Boulevard, Stamford, CT 06901, Attention: Debt Capital Markets Syndicate; or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it care of Express Scripts Holding Company, One Express Way, St. Louis, MO 63121, Attention: Keith Ebling, General Counsel; provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
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 Underwriters . The Representatives will act for the several Underwriters in connection with this purchase, and any action under this Agreement taken by the Representatives jointly will be binding upon all the Underwriters.
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 Guarantor acknowledge and agree that:
(a) No Other Relationship . The Representatives have been retained solely to act as underwriters in connection with the sale 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, the General Disclosure Package or the Final Prospectus, 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 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 Law . 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 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.
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 Underwriters in accordance with its terms.
| Very truly yours, | ||
| EXPRESS SCRIPTS HOLDING COMPANY | ||
| By: |
/s/ George Paz |
|
| Name: George Paz | ||
| Title: Chairman and Chief Executive Officer | ||
| CURASCRIPT, | ||
| ESI MAIL ORDER PROCESSING, INC. | ||
| ESI MAIL PHARMACY SERVICE, INC. | ||
| EXPRESS SCRIPTS PHARMACY, INC. | ||
|
EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC. |
||
|
EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO. |
||
| By: |
/s/ Christine Houston |
|
| Name: Christine Houston | ||
| Title: President | ||
| EXPRESS SCRIPTS WC, INC. | ||
| By: |
/s/ Edward B. Ignaczak |
|
| Name: Edward B. Ignaczak | ||
| Title: President | ||
| BYFIELD DRUG, INC. | ||
| CARE CONTINUUM, INC. | ||
| CFI OF NEW JERSEY, INC. | ||
| CHESAPEAKE INFUSION, INC. | ||
| CURASCRIPT PBM SERVICES, INC. | ||
|
DIVERSIFIED PHARMACEUTICAL SERVICES, INC. |
||
| ESI ACQUISITION, INC. ESI CLAIMS, INC. | ||
|
EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC. |
||
|
EXPRESS SCRIPTS SENIOR CARE, INC. |
||
|
EXPRESS SCRIPTS SERVICES COMPANY |
||
|
EXPRESS SCRIPTS, INC. |
||
|
FRECO, INC. |
||
|
HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC. |
||
|
HEALTHBRIDGE, INC. |
||
|
IBIOLOGIC, INC. |
||
|
IVTX, INC. |
||
|
LYNNFIELD COMPOUNDING CENTER, INC. |
||
|
LYNNFIELD DRUG, INC. |
||
|
MEDCO HEALTH SOLUTIONS, INC. |
||
|
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 HEALTH CARE VENTURES, INC. |
||
|
SPECTRACARE INFUSION PHARMACY, INC. |
||
|
SPECTRACARE, |
||
|
VALUE HEALTH, INC. |
||
|
YOURPHARMACY.COM, INC. |
||
|
ACCREDO CARE NETWORK, INC. |
||
|
ACCREDO HEALTH GROUP, INC. |
||
|
ACCREDO HEALTH, INCORPORATED |
||
|
AHG OF NEW YORK, INC. |
||
|
BIOPARTNERS IN CARE, INC. |
||
|
HOME HEALTHCARE RESOURCES, INC. |
||
|
MEDCO HEALTH SERVICES, INC. |
||
|
NATIONAL RX SERVICES NO. 3, INC. OF OHIO |
||
|
THERAPEASE CUISINE, INC. |
||
|
TVC ACQUISITION CO., INC. |
||
|
UBC LATE STAGE, INC, |
||
|
UNITED BIOSOURCE HOLDINGS, INC |
||
|
UNITED BIOSOURCE PATIENT SOLUTIONS, INC. |
||
|
SPECTRACARE OF INDIANA |
||
| By: |
/s/ Keith J. Ebling |
|
| Name: Keith J. Ebling | ||
| Title: President | ||
| ESI RESOURCES, INC. | ||
|
ESI-GP HOLDINGS, INC. |
||
| By: |
/s/ Matt Dietrich |
|
| Name: Matt Dietrich | ||
| Title: President | ||
|
EXPRESS SCRIPTS CANADA HOLDING, CO. |
||
| By: |
/s/ Michael Biskey |
|
| Name: Michael Biskey | ||
| Title: President | ||
|
EXPRESS SCRIPTS CANADA HOLDING, LLC |
||
| By: Express Scripts Canada Holding Co., as sole member. | ||
| By: |
/s/ Michael Biskey |
|
| Name: Michael Biskey | ||
| Title: President | ||
|
EXPRESS SCRIPTS ADMINISTRATORS, LLC |
||
|
MAU PHARMACY, L.L.C. |
||
|
MEDCO CDUR, L.L.C. |
||
|
MEDCO CHP, L.L.C. |
||
|
MEDCO CONTINUATION HEALTH, L.L.C. |
||
|
MEDCO EUROPE, L.L.C. |
||
|
MEDCO EUROPE II, L.L.C. |
||
|
MEDCO HEALTH NEW YORK INDEPENDENT |
||
|
PRACTICE ASSOCIATION, L.L.C. |
||
|
MEDCO HEALTH PUERTO RICO, L.L.C. |
||
|
MEDCO HEALTH SOLUTIONS OF ILLINOIS, L.L.C. |
||
|
MEDCO RESEARCH INSTITUTE, L.L.C. |
||
|
MEDCOHEALTH.COM, L.L.C. |
||
|
SYSTEMED, L.L.C. |
||
| By: Medco Health Solutions, Inc. as sole member. | ||
| By: |
/s/ Keith J. Ebling |
|
| Name: Keith J. Ebling | ||
| Title: President | ||
|
AIRPORT HOLDINGS, LLC |
||
|
ESI REALTY, LLC |
||
|
ESI HRA, LLC |
||
| By: Express Scripts, Inc., as sole member. | ||
| By: |
/s/ Keith J. Ebling |
|
| Name: Keith J. Ebling | ||
| Title: President | ||
|
MOORESVILLE ON-SITE PHARMACY, LLC |
||
| By: ESI Mail Pharmacy Service, Inc.., as sole member. | ||
| By: |
/s/ Christine Houston |
|
| Name: Christine Houston | ||
| Title: President | ||
|
MEDCO OF WILLINGBORO URBAN RENEWAL, LLC |
||
| By: Express Scripts Pharmacy, Inc., as sole member. | ||
| By: |
/s/ Christine Houston |
|
| Name: Christine Houston | ||
| Title: President | ||
|
THE VACCINE CONSORTIUM, LLC |
||
| By: TVC Acquisition Co. Inc., as sole member | ||
| By: |
/s/ Keith J. Ebling |
|
| Name: Keith J. Ebling | ||
| Title: President | ||
|
UNITED BIOSOURCE LLC |
||
| By: United BioSource Holdings, Inc., as sole member. | ||
| By: |
/s/ Keith J. Ebling |
|
| Name: Keith J. Ebling | ||
| Title: President | ||
|
EXPRESS SCRIPTS MSA, LLC |
||
| By: Express Scripts WC, Inc., as sole member | ||
| By: |
/s/ Edward B. Ignaczak |
|
| Name: Edward B. Ignaczak | ||
| Title: President | ||
|
FREEDOM SERVICE COMPANY, LLC |
||
| By: Lynnfield Drug, Inc., as sole member | ||
| By: |
/s/ Keith J. Ebling |
|
| Name: Keith J. Ebling | ||
| Title: President | ||
|
MATRIX GPO LLC |
||
| By: Priority Healthcare Co oration, as sole member. | ||
| By: |
/s/ Keith J. Ebling |
|
| Name: Keith J. Ebling | ||
| Title: President | ||
| ESI ENTERPRISES, LLC | ||
| By: Express Scripts, Inc., as member | ||
| By: |
/s/ Keith J. Ebling |
|
| Name: Keith J. Ebling | ||
| Title: President | ||
|
By: Express Scripts Specialty Distribution Services
|
||
| By: |
/s/ Christine Houston |
|
| Name: Christine Houston | ||
| Title: President | ||
| By: ESI Mail Pharmacy Services, Inc., as member | ||
| By: |
/s/ Christine Houston |
|
| Name: Christine Houston | ||
| Title: President | ||
| By: ESI-GP Holdings, Inc., as member | ||
| By: |
/s/ Matt Dietrich |
|
| Name: Matt Dietrich | ||
| Title: President | ||
|
EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC |
||
| By: Express Scripts, Inc., as member | ||
| By: |
/s/ Keith J. Ebling |
|
| Name: Keith J. Ebling | ||
| Title: President | ||
| By: ESI Mail Pharmacy Services, Inc., as member | ||
| By: |
/s/ Christine Houston |
|
| Name: Christine Houston | ||
| Title: President | ||
| ESI PARTNERSHIP | ||
| By: Express Scripts, Inc., as member | ||
| By: |
/s/ Keith J. Ebling |
|
| Name: Keith J. Ebling | ||
| Title: President | ||
| By: ESI-GP Holdings, Inc., as partner | ||
| By: |
/s/ Matt Dietrich |
|
| Name: Matt Dietrich | ||
| Title: President | ||
| The foregoing Underwriting 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 Underwriters |
||
| CITIGROUP GLOBAL MARKETS INC. | ||
| By: |
/s/ Brian D. Bednarski |
|
| Name: Brian D. Bednarski | ||
| Title: Managing Director | ||
[Signature Page to Underwriting Agreement]
| CREDIT SUISSE SECURITIES (USA) LLC | ||
| By: |
/s/ Jonathan Lee |
|
| Name: Jonathan Lee | ||
| Title: Director | ||
[Signature Page to Underwriting Agreement]
| DEUTSCHE BANK SECURITIES INC. | ||
| By: |
/s/ John C. McCabe |
|
| Name: John C. McCabe | ||
| Title: Director | ||
| By: |
/s/ Jared Birnbaum |
|
| Name: Jared Birnbaum | ||
| Title: Managing Director | ||
[Signature Page to Underwriting Agreement]
| RBS SECURITIES INC. | ||
| By: |
/s/ Moshe Tomkiewicz |
|
| Name: Moshe Tomkiewicz | ||
| Title: Managing Director | ||
[Signature Page to Underwriting Agreement]
SCHEDULE A
|
Underwriter |
Principal Amount
of 1.25% Senior Notes due 2017 to be Purchased |
Principal Amount
of 2.25% Senior Notes due 2019 to be Purchased |
Principal Amount
of 3.50% Senior Notes due 2024 to be Purchased |
|||||||||
|
Citigroup Global Markets Inc. |
$ | 70,000,000 | $ | 140,000,000 | $ | 140,000,000 | ||||||
|
Credit Suisse Securities (USA) LLC |
$ | 70,000,000 | $ | 140,000,000 | $ | 140,000,000 | ||||||
|
Deutsche Bank Securities Inc. |
$ | 70,000,000 | $ | 140,000,000 | $ | 140,000,000 | ||||||
|
RBS Securities Inc. |
$ | 70,000,000 | $ | 140,000,000 | $ | 140,000,000 | ||||||
|
Credit Agricole Securities (USA) Inc. |
$ | 20,000,000 | $ | 40,000,000 | $ | 40,000,000 | ||||||
|
DNB Markets, Inc. |
— | $ | 40,000,000 | — | ||||||||
|
J.P. Morgan Securities Inc. |
$ | 20,000,000 | — | $ | 40,000,000 | |||||||
|
Lloyds Securities Inc. |
— | $ | 40,000,000 | — | ||||||||
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
$ | 20,000,000 | $ | 40,000,000 | $ | 40,000,000 | ||||||
|
Mitsubishi UFJ Securities (USA), Inc. |
$ | 20,000,000 | $ | 40,000,000 | $ | 40,000,000 | ||||||
|
Mizuho Securities USA Inc. |
$ | 20,000,000 | $ | 40,000,000 | $ | 40,000,000 | ||||||
|
RBC Capital Markets, LLC |
$ | 20,000,000 | — | $ | 40,000,000 | |||||||
|
Scotia Capital (USA) Inc. |
$ | 20,000,000 | $ | 40,000,000 | $ | 40,000,000 | ||||||
|
SMBC Nikko Securities America, Inc. |
$ | 20,000,000 | $ | 40,000,000 | $ | 40,000,000 | ||||||
|
SunTrust Robinson Humphrey, Inc. |
$ | 20,000,000 | $ | 40,000,000 | $ | 40,000,000 | ||||||
|
UBS Securities LLC |
— | $ | 40,000,000 | — | ||||||||
|
U.S. Bancorp Investments, Inc. |
$ | 20,000,000 | — | $ | 40,000,000 | |||||||
|
Wells Fargo Securities, LLC |
$ | 20,000,000 | $ | 40,000,000 | $ | 40,000,000 | ||||||
|
Total |
$ | 500,000,000 | $ | 1,000,000,000 | $ | 1,000,000,000 | ||||||
SCHEDULE B
|
Name of Guarantor |
State or Other
|
|
|
ACCREDO CARE NETWORK, INC. |
Delaware | |
|
ACCREDO HEALTH GROUP, INC. |
Delaware | |
|
ACCREDO HEALTH, INCORPORATED |
Delaware | |
|
AHG OF NEW YORK, INC. |
New York | |
|
AIRPORT HOLDINGS, LLC |
New Jersey | |
|
BIO PARTNERS IN CARE, INC. |
Missouri | |
|
BYFIELD DRUG, INC. |
Massachusetts | |
|
CARE CONTINUUM, INC. |
Kentucky | |
|
CFI OF NEW JERSEY, INC. |
New Jersey | |
|
CHESAPEAKE INFUSION, INC. |
Florida | |
|
CURASCRIPT PBM SERVICES, INC. |
Delaware | |
|
CURASCRIPT, INC. |
Delaware | |
|
DIVERSIFIED PHARMACEUTICAL SERVICES, INC. |
Minnesota | |
|
ESI ACQUISITION, INC. |
New York | |
|
ESI CLAIMS, INC. |
Delaware | |
|
ESI ENTERPRISES, LLC |
Delaware | |
|
ESI HRA, LLC |
Delaware | |
|
ESI MAIL ORDER PROCESSING, INC. |
Delaware | |
|
ESI MAIL PHARMACY SERVICE, INC. |
Delaware | |
|
EXPRESS SCRIPTS MSA, LLC |
Florida | |
|
ESI PARTNERSHIP |
Delaware | |
|
ESI REALTY, LLC |
New Jersey | |
|
ESI RESOURCES, INC. |
Minnesota | |
|
ESI-GP HOLDINGS, INC. |
Delaware | |
|
EXPRESS SCRIPTS ADMINISTRATORS, LLC |
Delaware | |
|
EXPRESS SCRIPTS CANADA HOLDING, CO. |
Delaware | |
|
EXPRESS SCRIPTS CANADA HOLDING, LLC |
Delaware | |
|
EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC |
Delaware | |
|
EXPRESS SCRIPTS PHARMACY, INC. |
Delaware | |
|
EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC. |
Delaware | |
|
EXPRESS SCRIPTS SENIOR CARE, INC. |
Delaware | |
|
EXPRESS SCRIPTS SERVICES COMPANY |
Delaware | |
|
EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC. |
Delaware | |
|
EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO. |
Delaware | |
|
EXPRESS SCRIPTS WC, INC. |
Florida | |
|
EXPRESS SCRIPTS, INC. |
Delaware | |
|
FRECO, INC. |
Florida | |
|
FREEDOM SERVICE COMPANY, LLC |
Florida | |
|
HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC. |
Massachusetts | |
|
HEALTHBRIDGE, INC. |
Delaware | |
|
HOME HEALTHCARE RESOURCES, INC. |
Pennsylvania | |
|
iBIOLOGIC, INC. |
Delaware | |
|
IVTX, INC. |
Delaware | |
|
LYNNFIELD COMPOUNDING CENTER, INC. |
Florida | |
|
LYNNFIELD DRUG, INC. |
Florida | |
|
MAH PHARMACY, L.L.C. |
Delaware | |
|
MATRIX GPO LLC |
Indiana | |
|
MEDCO CDUR, L.L.C. |
Delaware | |
|
MEDCO CHP, L.L.C. |
Delaware |
|
Name of Guarantor |
State or Other
|
|
|
MEDCO CONTINUATION HEALTH, L.L.C. |
Delaware | |
|
MEDCO EUROPE II, L.L.C. |
Delaware | |
|
MEDCO EUROPE, L.L.C. |
Delaware | |
|
MEDCO HEALTH NEW YORK INDEPENDENT PRACTICE ASSOCIATION, L.L.C. |
New York | |
|
MEDCO HEALTH PUERTO RICO, L.L.C. |
Delaware | |
|
MEDCO HEALTH SERVICES, INC. |
Delaware | |
|
MEDCO HEALTH SOLUTIONS OF ILLINOIS, L.L.C. |
Delaware | |
|
MEDCO HEALTH SOLUTIONS, INC. |
Delaware | |
|
MEDCO OF WILLINGBORO URBAN RENEWAL, L.L.C. |
New Jersey | |
|
MEDCO RESEARCH INSTITUTE, L.L.C. |
Delaware | |
|
MEDCOHEALTH.COM, L.L.C. |
New Jersey | |
|
MOORESVILLE ON-SITE PHARMACY, LLC |
Delaware | |
|
NATIONAL PRESCRIPTION ADMINISTRATORS, INC. |
New Jersey | |
|
NATIONAL RX SERVICES NO. 3, INC. OF OHIO |
Ohio | |
|
PRIORITY HEALTHCARE CORPORATION |
Indiana | |
|
PRIORITY HEALTHCARE CORPORATION WEST |
Nevada | |
|
PRIORITY HEALTHCARE DISTRIBUTION, INC. |
Florida | |
|
PRIORITY HEALTHCARE PHARMACY, INC. |
Florida | |
|
PRIORITYHEALTHCARE.COM, INC. |
Florida | |
|
SINUSPHARMACY, INC. |
Florida | |
|
SPECIALTY INFUSION PHARMACY, INC. |
Florida | |
|
SPECTRACARE HEALTH CARE VENTURES, INC. |
Kentucky | |
|
SPECTRACARE INFUSION PHARMACY, INC. |
Kentucky | |
|
SPECTRACARE OF INDIANA |
Indiana | |
|
SPECTRACARE, INC. |
Kentucky | |
|
SYSTEMED, L.L.C. |
Delaware | |
|
THE VACCINE CONSORTIUM, LLC |
Maryland | |
|
THERAPEASE CUISINE, INC. |
Wisconsin | |
|
TVC ACQUISITION CO., INC. |
Delaware | |
|
UBC LATE STAGE, INC. |
Missouri | |
|
UNITED BIOSOURCE LLC |
Delaware | |
|
UNITED BIOSOURCE HOLDINGS, INC. |
Delaware | |
|
UNITED BIOSOURCE PATIENT SOLUTIONS, INC. |
Delaware | |
|
VALUE HEALTH, INC. |
Delaware | |
|
YOURPHARMACY.COM, INC. |
Delaware |
SCHEDULE C
| 1. | General Use Issuer Free Writing Prospectuses (included in the General Disclosure Package) |
1. Final term sheet, dated June 2, 2014 for the 1.25% Senior Notes due 2017, the 2.25% Senior Notes due 2019 and the 3.50% Senior Notes due 2024.
| 2. | Other Information Included in the General Disclosure Package |
The following information is also included in the General Disclosure Package:
None.
Exhibit 4.1
EXECUTION COPY
ELEVENTH SUPPLEMENTAL INDENTURE
Dated as of June 5, 2014
Supplementing that Certain
INDENTURE
Dated as of November 21, 2011
Among
EXPRESS SCRIPTS HOLDING COMPANY
THE GUARANTORS PARTY HERETO
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
1.25% SENIOR NOTES DUE 2017
This Eleventh Supplemental Indenture, dated as of June 5, 2014 (the “ Eleventh Supplemental Indenture ”), among Express Scripts Holding Company, 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 Eleventh 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 “1.25% Senior Notes due 2017” pursuant to the terms of this Eleventh 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 June 5, 2014, 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 “1.25% 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 Eleventh Supplemental Indenture shall be issued in the aggregate principal amount of $500,000,000 and shall mature on June 2, 2017 unless the Securities are redeemed prior to that date as described in Section 4.1 of this Eleventh Supplemental Indenture. The aggregate principal amount of Initial Securities Outstanding at any time may not exceed $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 1.25% (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.
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(2) The Company shall pay interest on the Securities semi-annually in arrears on December 2 and June 2 of each year (each, an “ Interest Payment Date ”), commencing December 2, 2014.
(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 7000 Central Parkway NE, Suite 550, Atlanta, Georgia 30328. 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. Relationship with Base Indenture.
The terms and provisions contained in the Base Indenture will constitute, and are hereby expressly made, a part of this Eleventh Supplemental Indenture. However, to the extent any provision of the Base Indenture conflicts with the express provisions of this Eleventh Supplemental Indenture, the provisions of this Eleventh Supplemental Indenture will govern and be controlling; provided , however , that the forms and provisions of this Eleventh Supplemental Indenture modify and amend the terms of the Base Indenture only with respect to the Securities.
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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 Eleventh Supplemental Indenture otherwise requires) for all purposes of this Eleventh Supplemental Indenture and of any indenture supplemental hereto have the respective meanings specified in this Section 2.1. All other terms used in this Eleventh 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 Eleventh 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 Eleventh Supplemental Indenture as originally executed; provided that any term that is defined in both the Base Indenture and this Eleventh Supplemental Indenture shall have the meaning assigned to such term in this Eleventh Supplemental Indenture.
“ Additional Securities ” has the meaning specified in Section 1.1(3).
“ Appendix ” has the meaning specified in the recitals to this Eleventh 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 ” means a certificated Security.
“ Independent Investment Banker ” means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.
“ Initial Securities ” means Securities in an aggregate principal amount of up to $500,000,000 initially issued under this Eleventh Supplemental Indenture in accordance with Section 1.1(3).
“ Interest Payment Date ” has the meaning specified in Section 1.2(2).
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“ Maturity Date ” means June 2, 2017.
“ Reference Treasury Dealer ” means each of Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., RBS Securities Inc. and one other primary United States government securities dealer selected by the Company (in each case, or their affiliates and 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 (or, in the case of a satisfaction and discharge, the third Business Day preceding deposit of the redemption amount).
“ 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).
“ 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 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 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 Eleventh Supplemental Indenture. The Guarantees shall be in substantially the form set forth in Exhibit 2 to the Appendix.
6
(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 10 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.
ARTICLE V
Supplemental Indentures
SECTION 5.1. 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 Eleventh 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 Eleventh Supplemental Indenture and the Securities pursuant to the provisions under Article VIII or Section 13.15 of the Base Indenture;
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(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 Eleventh 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 Eleventh Supplemental Indenture relating to the transfer or legending of the Securities; provided that (i) compliance with the Base Indenture or this Eleventh 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 Eleventh 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 Eleventh Supplemental Indenture or the Securities made solely to conform the provisions of the Base Indenture, this Eleventh Supplemental Indenture or the Securities to any description of the Securities in the offering circular or prospectus therefor, to the extent that such provision in the offering circular or prospectus was intended to be a verbatim recitation of a provision of the Base Indenture, this Eleventh Supplemental Indenture or the Securities, shall be deemed to adversely affect the interests of the Holders of any Securities.
SECTION 5.2. 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 Eleventh 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;
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(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 Eleventh Supplemental Indenture, for waiver of compliance with certain provisions of the Base Indenture or this Eleventh 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 Eleventh Supplemental Indenture other than in accordance with the terms thereof or hereof; or
(8) modify any of the above provisions.
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 Eleventh 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 Eleventh 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 Base Indenture.
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ARTICLE VI
Covenants
SECTION 6.1. Limitations on Liens
With respect to the Securities, Section 10.8 of the Base Indenture is hereby amended to replace Section 10.8(7) with the following:
(7) Liens existing on the date of this Eleventh Supplemental Indenture securing Indebtedness or other obligations of the Company or any of its Subsidiaries;
ARTICLE VII
Miscellaneous.
SECTION 7.1. Governing Law; Waiver of Jury Trial
THIS ELEVENTH 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 ELEVENTH SUPPLEMENTAL INDENTURE, THE GUARANTEES, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 7.2. Supplemental Indenture May be Executed in Counterparts.
This Eleventh 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 Eleventh Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Eleventh Supplemental Indenture as to the parties hereto and may be used in lieu of the original Eleventh 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 7.3. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Eleventh Supplemental Indenture to be duly executed all as of the day and year first above written.
[Signature Pages To Follow]
11
IN WITNESS WHEREOF, the parties hereto have caused this Eleventh Supplemental Indenture to be duly executed all as of the day and year first above written.
| EXPRESS SCRIPTS HOLDING COMPANY | ||||
| By: | /s/ George Paz | |||
| Name: | George Paz | |||
| Title: | Chairman and Chief Executive Officer | |||
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CURASCRIPT, INC. ESI MAIL ORDER PROCESSING, INC. ESI MAIL PHARMACY SERVICE, INC. EXPRESS SCRIPTS PHARMACY, INC. EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC. EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO. |
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| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| EXPRESS SCRIPTS WC, INC. | ||||
| By: | /s/ Edward B. Ignaczak | |||
| Name: | Edward B. Ignaczak | |||
| Title: | President | |||
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BYFIELD DRUG, INC. CARE CONTINUUM, INC. CFI OF NEW JERSEY, INC. CHESAPEAKE INFUSION, INC. CURASCRIPT PBM SERVICES, INC. DIVERSIFIED PHARMACEUTICAL SERVICES, INC. ESI ACQUISITION, INC. ESI CLAIMS, INC. EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC. EXPRESS SCRIPTS SENIOR CARE, INC. EXPRESS SCRIPTS SERVICES COMPANY |
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[Signature Page to Eleventh Supplemental Indenture]
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EXPRESS SCRIPTS, INC. FRECO, INC. HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC. HEALTHBRIDGE, INC. iBIOLOGIC, INC. IVTX, INC. LYNNFIELD COMPOUNDING CENTER, INC. LYNNFIELD DRUG, INC. MEDCO HEALTH SOLUTIONS, INC. 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 HEALTH CARE VENTURES, INC. SPECTRACARE INFUSION PHARMACY, INC. SPECTRACARE, INC. VALUE HEALTH, INC. YOURPHARMACY.COM, INC. ACCREDO CARE NETWORK, INC. ACCREDO HEALTH GROUP, INC. ACCREDO HEALTH, INCORPORATED AHG OF NEW YORK, INC. BIOPARTNERS IN CARE, INC. HOME HEALTHCARE RESOURCES, INC. MEDCO HEALTH SERVICES, INC. NATIONAL RX SERVICES NO. 3, INC. OF OHIO THERAPEASE CUISINE, INC. TVC ACQUISITION CO., INC. UBC LATE STAGE, INC. UNITED BIOSOURCE HOLDINGS, INC. UNITED BIOSOURCE PATIENT SOLUTIONS, INC. SPECTRACARE OF INDIANA |
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| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
[Signature Page to Eleventh Supplemental Indenture]
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ESI RESOURCES, INC. ESI-GP HOLDINGS, INC. |
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By: |
/s/ Matt Dietrich | |||
| Name: | Matt Dietrich | |||
| Title: | President | |||
| EXPRESS SCRIPTS CANADA HOLDING, CO. | ||||
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By: |
/s/ Michael Biskey | |||
| Name: | Michael Biskey | |||
| Title: | President | |||
| EXPRESS SCRIPTS CANADA HOLDING, LLC | ||||
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By: Express Scripts Canada Holding Co.,
|
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By: |
/s/ Michael Biskey | |||
| Name: | Michael Biskey | |||
| Title: | President | |||
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EXPRESS SCRIPTS ADMINISTRATORS, LLC MAH PHARMACY, L.L.C. MEDCO CDUR, L.L.C. MEDCO CHP, L.L.C. MEDCO CONTINUATION HEALTH, L.L.C. MEDCO EUROPE, L.L.C. MEDCO EUROPE II, L.L.C. MEDCO HEALTH NEW YORK INDEPENDENT PRACTICE ASSOCIATION, L.L.C. MEDCO HEALTH PUERTO RICO, L.L.C. MEDCO HEALTH SOLUTIONS OF ILLINOIS, L.L.C. MEDCO RESEARCH INSTITUTE, L.LC. MEDCOHEALTH.COM, L.L.C. SYSTEMED, L.L.C. |
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By: Medco Health Solutions, Inc., as sole member. |
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| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
[Signature Page to Eleventh Supplemental Indenture]
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AIRPORT HOLDINGS, LLC ESI ENTERPRISES, LLC ESI REALTY, LLC EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC ESI HRA, LLC
By: Express Scripts, Inc., as sole member. |
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| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| MOORESVILLE ON-SITE PHARMACY, LLC | ||||
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By: ESI Mail Pharmacy Service, Inc.,
|
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| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
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MEDCO OF WILLINGBORO URBAN RENEWAL, L.L.C. |
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| By: Express Scripts Pharmacy, Inc., as sole member. | ||||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
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THE VACCINE CONSORTIUM, LLC |
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| By: TVC Acquisition Co. Inc., as sole member | ||||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
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UNITED BIOSOURCE LLC |
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By: United BioSource Holdings, Inc.,
|
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| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| EXPRESS SCRIPTS MSA, LLC | ||||
| By: Express Scripts WC, Inc., as sole member. | ||||
| By: | /s/ Edward B. Ignaczak | |||
| Name: | Edward B. Ignaczak | |||
| Title: | President | |||
[Signature Page to Eleventh Supplemental Indenture]
| FREEDOM SERVICE COMPANY, LLC | ||||
| By: Lynnfield Drug, Inc., as sole member | ||||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| MATRIX GPO LLC | ||||
| By: Priority Healthcare Corporation, as sole member. | ||||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
[Signature Page to Eleventh Supplemental Indenture]
| ESI ENTERPRISES, LLC | ||||
| By: | Express Scripts, Inc., as member | |||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| By: | Express Scripts Specialty Distribution Services Inc., as member | |||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| By: | ESI Mail Pharmacy Services, Inc., as member | |||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| By: | ESI-GP Holdings, Inc., as member | |||
| By: | /s/ Matt Dietrich | |||
| Name: | Matt Dietrich | |||
| Title: | President | |||
| EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC | ||||
| By: | Express Scripts, Inc., as member | |||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| By: | ESI Mail Pharmacy Services, Inc., as member | |||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| ESI PARTNERSHIP | ||||
| By: | Express Scripts, Inc., as partner | |||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| By: | ESI-GP Holdings, Inc., as partner | |||
| By: | /s/ Matt Dietrich | |||
| Name: | Matt Dietrich | |||
| Title: | President | |||
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||||
| By: | /s/ Stefan Victory | |||
| Name: | Stefan Victory | |||
| Title: | Vice President | |||
[Signature Page to Eleventh Supplemental Indenture]
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.
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EXPRESS SCRIPTS HOLDING COMPANY
1.25% SENIOR NOTE DUE 2017
| No. | Principal Amount (US)$ | |
| CUSIP NO. | ||
| ISIN NO. |
Express Scripts Holding Company, 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 June 2, 2017 and to pay interest thereon, from June 5, 2014, 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 June 2 and December 2 of each year, commencing December 2, 2014, at the per annum rate of 1.25%, 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 7000 Central Parkway NE, Suite 550, Atlanta, Georgia 30328, 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).
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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.
| EXPRESS SCRIPTS HOLDING COMPANY | ||
| By: | ||
| Name: | ||
| Title: | ||
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Attest: |
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By: |
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Name: |
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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:
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee |
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| 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 “ 1.25% Senior Notes due 2017 ” (herein called the “ Securities ”), issued under a Eleventh Supplemental Indenture, dated as of June 5, 2014, 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 Eleventh 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 $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 Eleventh Supplemental Indenture pursuant to which this Security is issued provides that Additional Securities may be issued thereunder, if certain conditions are met.
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 to consolidate, merge or transfer all or substantially all of its 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 10 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.
(3) Mandatory Redemption . Except as provided in Section 4 below, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.
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(4) 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.
(5) 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.
(6) 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 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.
(7) 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.
(8) 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 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
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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.
(9) 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 Guarantors. 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.
(10) 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.
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(11) 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.
(12) 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:
Express Scripts Holding Company
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:
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.
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| Date: | Your Signature: | |||
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Sign exactly as your name appears on the other side of this Security.
Signature Guarantee:
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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 ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
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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: $ .
| 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.
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EXHIBIT 2
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)] | ||
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| Title: | ] | |
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Exhibit 4.2
EXECUTION COPY
TWELFTH SUPPLEMENTAL INDENTURE
Dated as of June 5, 2014
Supplementing that Certain
INDENTURE
Dated as of November 21, 2011
Among
EXPRESS SCRIPTS HOLDING COMPANY
THE GUARANTORS PARTY HERETO
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
2.25% SENIOR NOTES DUE 2019
This Twelfth Supplemental Indenture, dated as of June 5, 2014 (the “ Twelfth Supplemental Indenture ”), among Express Scripts Holding Company, 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 Twelfth 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 “2.25% Senior Notes due 2019” pursuant to the terms of this Twelfth 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 June 5, 2014, 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 “2.25% Senior Notes due 2019” 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 Twelfth Supplemental Indenture shall be issued in the aggregate principal amount of $1,000,000,000 and shall mature on June 15, 2019 unless the Securities are redeemed prior to that date as described in Section 4.1 of this Twelfth 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 2.25% (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.
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(2) The Company shall pay interest on the Securities semi-annually in arrears on December 15 and June 15 of each year (each, an “ Interest Payment Date ”), commencing December 15, 2014.
(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 7000 Central Parkway NE, Suite 550, Atlanta, Georgia 30328. 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. Relationship with Base Indenture.
The terms and provisions contained in the Base Indenture will constitute, and are hereby expressly made, a part of this Twelfth Supplemental Indenture. However, to the extent any provision of the Base Indenture conflicts with the express provisions of this Twelfth Supplemental Indenture, the provisions of this Twelfth Supplemental Indenture will govern and be controlling; provided , however , that the forms and provisions of this Twelfth Supplemental Indenture modify and amend the terms of the Base Indenture only with respect to the Securities.
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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 Twelfth Supplemental Indenture otherwise requires) for all purposes of this Twelfth Supplemental Indenture and of any indenture supplemental hereto have the respective meanings specified in this Section 2.1. All other terms used in this Twelfth 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 Twelfth 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 Twelfth Supplemental Indenture as originally executed; provided that any term that is defined in both the Base Indenture and this Twelfth Supplemental Indenture shall have the meaning assigned to such term in this Twelfth Supplemental Indenture.
“ Additional Securities ” has the meaning specified in Section 1.1(3).
“ Appendix ” has the meaning specified in the recitals to this Twelfth 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 ” means a certificated Security.
“ Independent Investment Banker ” means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.
“ Initial Securities ” means Securities in an aggregate principal amount of up to $1,000,000,000 initially issued under this Twelfth Supplemental Indenture in accordance with Section 1.1(3).
“ Interest Payment Date ” has the meaning specified in Section 1.2(2).
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“ Maturity Date ” means June 15, 2019.
“ Reference Treasury Dealer ” means each of Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., RBS Securities Inc. and one other primary United States government securities dealer selected by the Company (in each case, or their affiliates and 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 (or, in the case of a satisfaction and discharge, the third Business Day preceding deposit of the redemption amount).
“ 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).
“ 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 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 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 Twelfth Supplemental Indenture. The Guarantees shall be in substantially the form set forth in Exhibit 2 to the Appendix.
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(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 15 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.
ARTICLE V
Supplemental Indentures
SECTION 5.1. 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 Twelfth 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 Twelfth Supplemental Indenture and the Securities pursuant to the provisions under Article VIII or Section 13.15 of the Base Indenture;
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(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 Twelfth 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 Twelfth Supplemental Indenture relating to the transfer or legending of the Securities; provided that (i) compliance with the Base Indenture or this Twelfth 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 Twelfth 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 Twelfth Supplemental Indenture or the Securities made solely to conform the provisions of the Base Indenture, this Twelfth Supplemental Indenture or the Securities to any description of the Securities in the offering circular or prospectus therefor, to the extent that such provision in the offering circular or prospectus was intended to be a verbatim recitation of a provision of the Base Indenture, this Twelfth Supplemental Indenture or the Securities, shall be deemed to adversely affect the interests of the Holders of any Securities.
SECTION 5.2. 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 Twelfth 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;
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(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 Twelfth Supplemental Indenture, for waiver of compliance with certain provisions of the Base Indenture or this Twelfth 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 Twelfth Supplemental Indenture other than in accordance with the terms thereof or hereof; or
(8) modify any of the above provisions.
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 Twelfth 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 Twelfth 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 Base Indenture.
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ARTICLE VI
Covenants
SECTION 6.1. Limitations on Liens
With respect to the Securities, Section 10.8 of the Base Indenture is hereby amended to replace Section 10.8(7) with the following:
(7) Liens existing on the date of this Twelfth Supplemental Indenture securing Indebtedness or other obligations of the Company or any of its Subsidiaries;
ARTICLE VII
Miscellaneous.
SECTION 7.1. Governing Law; Waiver of Jury Trial
THIS TWELFTH 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 TWELFTH SUPPLEMENTAL INDENTURE, THE GUARANTEES, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 7.2. Supplemental Indenture May be Executed in Counterparts.
This Twelfth 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 Twelfth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Twelfth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Twelfth 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 7.3. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Twelfth Supplemental Indenture to be duly executed all as of the day and year first above written.
[Signature Pages To Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Twelfth Supplemental Indenture to be duly executed all as of the day and year first above written.
| EXPRESS SCRIPTS HOLDING COMPANY | ||||
| By: | /s/ George Paz | |||
| Name: | George Paz | |||
| Title: | Chairman and Chief Executive Officer | |||
|
CURASCRIPT, INC. ESI MAIL ORDER PROCESSING, INC. ESI MAIL PHARMACY SERVICE, INC. EXPRESS SCRIPTS PHARMACY, INC. EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC. EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO. |
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| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| EXPRESS SCRIPTS WC, INC. | ||||
| By: | /s/ Edward B. Ignaczak | |||
| Name: | Edward B. Ignaczak | |||
| Title: | President | |||
|
BYFIELD DRUG, INC. CARE CONTINUUM, INC. CFI OF NEW JERSEY, INC. CHESAPEAKE INFUSION, INC. CURASCRIPT PBM SERVICES, INC. DIVERSIFIED PHARMACEUTICAL SERVICES, INC. ESI ACQUISITION, INC. ESI CLAIMS, INC. EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC. EXPRESS SCRIPTS SENIOR CARE, INC. EXPRESS SCRIPTS SERVICES COMPANY |
||||
[Signature Page to Twelfth Supplemental Indenture]
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EXPRESS SCRIPTS, INC. FRECO, INC. HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC. HEALTHBRIDGE, INC. iBIOLOGIC INC. IVTX, INC. LYNNFIELD COMPOUNDING CENTER, INC. LYNNFIELD DRUG, INC. MEDCO HEALTH SOLUTIONS, INC. 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 HEALTH CARE VENTURES, INC. SPECTRACARE INFUSION PHARMACY, INC. SPECTRACARE, INC. VALUE HEALTH, INC. YOURPHARMACY.COM, INC. ACCREDO CARE NETWORK, INC. ACCREDO HEALTH GROUP, INC. ACCREDO HEALTH, INCORPORATED AHG OF NEW YORK, INC. BIOPARTNERS IN CARE, INC. HOME HEALTHCARE RESOURCES, INC. MEDCO HEALTH SERVICES, INC. NATIONAL RX SERVICES NO. 3, INC. OF OHIO THERAPEASE CUISINE, INC. TVC ACQUISITION CO., INC. UBC LATE STAGE, INC. UNITED BIOSOURCE HOLDINGS, INC. UNITED BIOSOURCE PATIENT SOLUTIONS, INC. SPECTRACARE OF INDIANA |
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| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
[Signature Page to Twelfth Supplemental Indenture]
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ESI RESOURCES, INC. ESI-GP HOLDINGS, INC. |
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By: |
/s/ Matt Dietrich | |||
| Name: | Matt Dietrich | |||
| Title: | President | |||
| EXPRESS SCRIPTS CANADA HOLDING, CO. | ||||
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By: |
/s/ Michael Biskey | |||
| Name: | Michael Biskey | |||
| Title: | President | |||
| EXPRESS SCRIPTS CANADA HOLDING, LLC | ||||
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By: Express Scripts Canada Holding Co., as sole member. |
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By: |
/s/ Michael Biskey | |||
| Name: | Michael Biskey | |||
| Title: | President | |||
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EXPRESS SCRIPTS ADMINISTRATORS, LLC MAH PHARMACY, L.L.C. MEDCO CDUR, L.L.C. MEDCO CHP, L.L.C. MEDCO CONTINUATION HEALTH, L.L.C. MEDCO EUROPE, L.L.C. MEDCO EUROPE II, L.L.C. MEDCO HEALTH NEW YORK INDEPENDENT PRACTICE ASSOCIATION, L.L.C. MEDCO HEALTH PUERTO RICO, L.L.C. MEDCO HEALTH SOLUTIONS OF ILLINOIS, L.L.C. MEDCO RESEARCH INSTITUTE, L.LC. MEDCOHEALTH.COM, L.L.C. SYSTEMED, L.L.C. |
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By: Medco Health Solutions, Inc., as sole member. |
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| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
[Signature Page to Twelfth Supplemental Indenture]
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AIRPORT HOLDINGS, LLC ESI ENTERPRISES, LLC ESI REALTY, LLC EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC ESI HRA, LLC
By: Express Scripts, Inc., as sole member. |
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| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| MOORESVILLE ON-SITE PHARMACY, LLC | ||||
| By: ESI Mail Pharmacy Service, Inc., as sole member. | ||||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
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MEDCO OF WILLINGBORO URBAN RENEWAL, L.L.C. |
||||
| By: Express Scripts Pharmacy, Inc., as sole member. | ||||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
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THE VACCINE CONSORTIUM, LLC |
||||
| By: TVC Acquisition Co, Inc., as sole member | ||||
| By: | /s/ Keith J. Ebling | |||
| Name | Keith J. Ebling | |||
| Title: | President | |||
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UNITED BIOSOURCE LLC |
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| By: United BioSource Holdings, Inc., as sole member. | ||||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| EXPRESS SCRIPTS MSA, LLC | ||||
| By: Express Scripts WC, Inc., as sole member | ||||
| By: | /s/ Edward B. Ignaczak | |||
| Name: | Edward B. Ignaczak | |||
| Title: | President | |||
[Signature Page to Twelfth Supplemental Indenture]
| FREEDOM SERVICE COMPANY, LLC | ||||
| By: Lynnfield Drug, Inc., as sole member | ||||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| MATRIX GPO LLC | ||||
| By: Priority Healthcare Corporation, as sole member. | ||||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
[Signature Page to Twelfth Supplemental Indenture]
| ESI ENTERPRISES, LLC | ||||
| By: | Express Scripts, Inc., as member | |||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| By: | Express Scripts Specialty Distribution Services Inc., as member | |||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| By: | ESI Mail Pharmacy Services, Inc., as member | |||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| By: | ESI-GP Holdings, Inc., as member | |||
| By: | /s/ Matt Dietrich | |||
| Name: | Matt Dietrich | |||
| Title: | President | |||
| EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC | ||||
| By: | Express Scripts, Inc., as member | |||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| By: | ESI Mail Pharmacy Services, Inc., as member | |||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| ESI PARTNERSHIP | ||||
| By: | Express Scripts, Inc., as partner | |||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| By: | ESI-GP Holdings, Inc., as partner | |||
| By: | /s/ Matt Dietrich | |||
| Name: | Matt Dietrich | |||
| Title: | President | |||
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||||
| By: | /s/ Stefan Victory | |||
| Name: | Stefan Victory | |||
| Title: | Vice President | |||
[Signature Page to Twelfth Supplemental Indenture]
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.
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EXPRESS SCRIPTS HOLDING COMPANY
2.25% SENIOR NOTE DUE 2019
| No. | Principal Amount (US)$ | |
| CUSIP NO. | ||
| ISIN NO. |
Express Scripts Holding Company, 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 June 15, 2019 and to pay interest thereon, from June 5, 2014, 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 June 15 and December 15 of each year, commencing December 15, 2014, at the per annum rate of 2.25%, 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 7000 Central Parkway NE, Suite 550, Atlanta, Georgia 30328, 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).
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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.
| EXPRESS SCRIPTS HOLDING COMPANY | ||
| By: | ||
| Name: | ||
| Title: | ||
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Attest: |
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By: |
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Name: |
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|
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 “ 2.25% Senior Notes due 2019 ” (herein called the “ Securities ”), issued under a Twelfth Supplemental Indenture, dated as of June 5, 2014, 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 Twelfth 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 Twelfth Supplemental Indenture pursuant to which this Security is issued provides that Additional Securities may be issued thereunder, if certain conditions are met.
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 to consolidate, merge or transfer all or substantially all of its 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 15 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.
(3) Mandatory Redemption . Except as provided in Section 4 below, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.
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(4) 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.
(5) 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.
(6) 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 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.
(7) 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.
(8) 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 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
7
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.
(9) 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 Guarantors. 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.
(10) 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.
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(11) 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.
(12) 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:
Express Scripts Holding Company
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:
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.
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| Date: | Your Signature: | |||
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Sign exactly as your name appears on the other side of this Security.
Signature Guarantee:
| Signature must be | Signature | |
| 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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[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:
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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: $ .
| 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.
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EXHIBIT 2
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.
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Name: |
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2
Exhibit 4.3
EXECUTION COPY
THIRTEENTH SUPPLEMENTAL INDENTURE
Dated as of June 5, 2014
Supplementing that Certain
INDENTURE
Dated as of November 21, 2011
Among
EXPRESS SCRIPTS HOLDING COMPANY
THE GUARANTORS PARTY HERETO
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
3.50% SENIOR NOTES DUE 2024
This Thirteenth Supplemental Indenture, dated as of June 5, 2014 (the “ Thirteenth Supplemental Indenture ”), among Express Scripts Holding Company, 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 Thirteenth 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 “3.50% Senior Notes due 2024” pursuant to the terms of this Thirteenth 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 June 5, 2014, 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 “3.50% Senior Notes due 2024” 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 Thirteenth Supplemental Indenture shall be issued in the aggregate principal amount of $1,000,000,000 and shall mature on June 15, 2024 unless the Securities are redeemed prior to that date as described in Section 4.1 of this Thirteenth 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 3.50% (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.
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(2) The Company shall pay interest on the Securities semi-annually in arrears on December 15 and June 15 of each year (each, an “ Interest Payment Date ”), commencing December 15, 2014.
(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 7000 Central Parkway NE, Suite 550, Atlanta, Georgia 30328. 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. Relationship with Base Indenture.
The terms and provisions contained in the Base Indenture will constitute, and are hereby expressly made, a part of this Thirteenth Supplemental Indenture. However, to the extent any provision of the Base Indenture conflicts with the express provisions of this Thirteenth Supplemental Indenture, the provisions of this Thirteenth Supplemental Indenture will govern and be controlling; provided , however , that the forms and provisions of this Thirteenth Supplemental Indenture modify and amend the terms of the Base Indenture only with respect to the Securities.
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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 Thirteenth Supplemental Indenture otherwise requires) for all purposes of this Thirteenth Supplemental Indenture and of any indenture supplemental hereto have the respective meanings specified in this Section 2.1. All other terms used in this Thirteenth 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 Thirteenth 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 Thirteenth Supplemental Indenture as originally executed; provided that any term that is defined in both the Base Indenture and this Thirteenth Supplemental Indenture shall have the meaning assigned to such term in this Thirteenth Supplemental Indenture.
“ Additional Securities ” has the meaning specified in Section 1.1(3).
“ Appendix ” has the meaning specified in the recitals to this Thirteenth 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 ” means a certificated Security.
“ Independent Investment Banker ” means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.
“ Initial Securities ” means Securities in an aggregate principal amount of up to $1,000,000,000 initially issued under this Thirteenth Supplemental Indenture in accordance with Section 1.1(3).
“ Interest Payment Date ” has the meaning specified in Section 1.2(2).
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“ Maturity Date ” means June 15, 2024.
“ Reference Treasury Dealer ” means each of Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., RBS Securities Inc. and one other primary United States government securities dealer selected by the Company (in each case, or their affiliates and 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 (or, in the case of a satisfaction and discharge, the third Business Day preceding deposit of the redemption amount).
“ 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).
“ 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 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 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 Thirteenth Supplemental Indenture. The Guarantees shall be in substantially the form set forth in Exhibit 2 to the Appendix.
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(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.
(1) The Company may, at its option, redeem the Securities, in whole or from time to time in part, prior to March 17, 2024 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 20 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.
(2) The Company may, at its option, redeem the Securities, in whole or from time to time in part, on or after March 17, 2024 at a Redemption Price equal to 100% of the aggregate principal amount of Securities to be redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date.
ARTICLE V
Supplemental Indentures
SECTION 5.1. 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 Thirteenth 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 Thirteenth Supplemental Indenture and the Securities pursuant to the provisions under Article VIII or Section 13.15 of the Base Indenture;
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(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 Thirteenth 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 Thirteenth Supplemental Indenture relating to the transfer or legending of the Securities; provided that (i) compliance with the Base Indenture or this Thirteenth 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 Thirteenth 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 Thirteenth Supplemental Indenture or the Securities made solely to conform the provisions of the Base Indenture, this Thirteenth Supplemental Indenture or the Securities to any description of the Securities in the offering circular or prospectus therefor, to the extent that such provision in the offering circular or prospectus was intended to be a verbatim recitation of a provision of the Base Indenture, this Thirteenth Supplemental Indenture or the Securities, shall be deemed to adversely affect the interests of the Holders of any Securities.
SECTION 5.2. Supplemental Indentures With Consent of Holders.
Section 9.2 of the Base Indenture shall not be applicable to the Securities.
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The Company, together with the Trustee, may modify and amend this Thirteenth 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 Thirteenth Supplemental Indenture, for waiver of compliance with certain provisions of the Base Indenture or this Thirteenth 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 Thirteenth Supplemental Indenture other than in accordance with the terms thereof or hereof; or
(8) modify any of the above provisions.
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 Thirteenth 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 Thirteenth 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 Base Indenture.
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ARTICLE VI
Covenants
SECTION 6.1. Limitations on Liens
With respect to the Securities, Section 10.8 of the Base Indenture is hereby amended to replace Section 10.8(7) with the following:
(7) Liens existing on the date of this Thirteenth Supplemental Indenture securing Indebtedness or other obligations of the Company or any of its Subsidiaries;
ARTICLE VII
Miscellaneous.
SECTION 7.1. Governing Law; Waiver of Jury Trial
THIS THIRTEENTH 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 THIRTEENTH SUPPLEMENTAL INDENTURE, THE GUARANTEES, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 7.2. Supplemental Indenture May be Executed in Counterparts.
This Thirteenth 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 Thirteenth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Thirteenth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Thirteenth 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.
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SECTION 7.3. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Thirteenth Supplemental Indenture to be duly executed all as of the day and year first above written.
[Signature Pages To Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Thirteenth Supplemental Indenture to be duly executed all as of the day and year first above written.
| EXPRESS SCRIPTS HOLDING COMPANY | ||
| By: | /s/ George Paz | |
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Name: George Paz Title: Chairman and Chief Executive Officer |
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CURASCRIPT, INC. ESI MAIL ORDER PROCESSING, INC. ESI MAIL PHARMACY SERVICE, INC. EXPRESS SCRIPTS PHARMACY, INC. EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC. EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO. |
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| By: | /s/ Christine Houston | |
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Name: Christine Houston Title: President |
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| EXPRESS SCRIPTS WC, INC. | ||
| By: | /s/ Edward B. Ignaczak | |
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Name: Edward B. Ignaczak Title: President |
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[Signature Page to Thirteenth Supplemental Indenture]
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EXPRESS SCRIPTS, INC. FRECO, INC. HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC. HEALTHBRIDGE, INC. iBIOLOGIC INC. IVTX, INC. LYNNFIELD COMPOUNDING CENTER, INC. LYNNFIELD DRUG, INC. MEDCO HEALTH SOLUTIONS, INC. 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 HEALTH CARE VENTURES, INC. SPECTRACARE INFUSION PHARMACY, INC. SPECTRACARE, INC. VALUE HEALTH, INC. YOURPHARMACY.COM, INC. ACCREDO CARE NETWORK, INC. ACCREDO HEALTH GROUP, INC. ACCREDO HEALTH, INCORPORATED AHG OF NEW YORK, INC. BIOPARTNERS IN CARE, INC. HOME HEALTHCARE RESOURCES, INC. MEDCO HEALTH SERVICES, INC. NATIONAL RX SERVICES NO. 3, INC. OF OHIO THERAPEASE CUISINE, INC. TVC ACQUISITION CO., INC. UBC LATE STAGE, INC. UNITED BIOSOURCE HOLDINGS, INC. UNITED BIOSOURCE PATIENT SOLUTIONS, INC. SPECTRACARE OF INDIANA |
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| By: | /s/ keith J. Ebling | |
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Name: keith J. Ebling Title: President |
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[Signature Page to Thirteenth Supplemental Indenture]
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ESI RESOURCES, INC. ESI-GP HOLDINGS, INC. |
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| By: | /s/ Matt Dietrich | |
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Name: Matt Dietrich Title: President |
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| EXPRESS SCRIPTS CANADA HOLDING, CO. | ||
| By: | /s/ Michael Biskey | |
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Name: Michael Biskey Title: President |
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| EXPRESS SCRIPTS CANADA HOLDING, LLC | ||
| By: Express Scripts Canada Holding Co., as sole member. | ||
| By: | /s/ Michael Biskey | |
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Name: Michael Biskey Title: President |
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EXPRESS SCRIPTS ADMINISTRATORS, LLC MAH PHARMACY, L.L.C. MEDCO CDUR, L.L.C. MEDCO CHP, L.L.C. MEDCO CONTINUATION HEALTH, L.L.C. MEDCO EUROPE, L.L.C. MEDCO EUROPE II, L.L.C. MEDCO HEALTH NEW YORK INDEPENDENT PRACTICE ASSOCIATION, L.L.C. MEDCO HEALTH PUERTO RICO, L.L.C. MEDCO HEALTH SOLUTIONS OF ILLINOIS, L.L.C. MEDCO RESEARCH INSTITUTE, L.L.C. MEDCOHEALTH.COM, L.L.C. SYSTEMED, L.L.C. |
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| By: Medco Health Solutions, Inc. as sole member. | ||
| By: | /s/ Keith J. Ebling | |
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Name: Keith J. Ebling Title: President |
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[Signature Page to Thirteenth Supplemental Indenture]
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AIRPORT HOLDINGS, LLC ESI ENTERPRISES, LLC ESI REALTY, LLC EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC ESI HRA, LLC
By: Express Scripts, Inc., as sole member. |
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| By: | /s/ Keith J. Ebling | |
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Name: Keith J. Ebling Title: President |
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| MOORESVILLE ON-SITE PHARMACY, LLC | ||
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By: ESI Mail Pharmacy Service, Inc.,
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| By: | /s/ Christine Houston | |
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Name: Christine Houston Title: President |
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| MEDCO OF WILLINGBORO URBAN RENEWAL, L.L.C. | ||
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By: Express Scripts Pharmacy, Inc.,
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| By: | /s/ Christine Houston | |
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Name: Christine Houston Title: President |
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| THE VACCINE CONSORTIUM, LLC | ||
| By: TVC Acquisition Co. Inc., as sole member | ||
| By: | /s/ Keith J. Ebling | |
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Name: Keith J. Ebling Title: President |
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| UNITED BIOSOURCE LLC | ||
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By: United BioSource Holdings, Inc.,
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| By: | /s/ Keith J. Ebling | |
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Name: Keith J. Ebling Title: President |
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EXPRESS SCRIPTS MSA, LLC
By: Express Scripts WC, Inc., as sole member |
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| By: | /s/ Edward B. Ignaczak | |
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Name: Edward B. Ignaczak Title: President |
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[Signature Page to Thirteenth Supplemental Indenture]
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FREEDOM SERVICE COMPANY, LLC
By: Lynnfield Drug, Inc., as sole member
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| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| MATRIX GPO LLC | ||||
| By: Priority Healthcare Corporation, as sole member. | ||||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
[Signature Page to Thirteenth Supplemental Indenture]
| ESI ENTERPRISES, LLC | ||||
| By: Express Scripts, Inc., as member | ||||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
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By: Express Scripts Specialty Distribution Services Inc., as member |
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| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| By: ESI Mail Pharmacy Services, Inc., as member | ||||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| By: ESI-GP Holdings, Inc., as member | ||||
| By: | /s/ Matt Dietrich | |||
| Name: | Matt Dietrich | |||
| Title: | President | |||
| EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC | ||||
| By: Express Scripts, Inc., as member | ||||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| By: ESI Mail Pharmacy Services, Inc., as member | ||||
| By: | /s/ Christine Houston | |||
| Name: | Christine Houston | |||
| Title: | President | |||
| ESI PARTNERSHIP | ||||
| By: Express Scripts, Inc., as partner | ||||
| By: | /s/ Keith J. Ebling | |||
| Name: | Keith J. Ebling | |||
| Title: | President | |||
| By: ESI-GP Holdings, Inc., as partner | ||||
| By: | /s/ Matt Dietrich | |||
| Name: | Matt Dietrich | |||
| Title: | President | |||
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||||
| By: | /s/ Stefan Victory | |||
| Name: | Stefan Victory | |||
| Title: | Vice President | |||
[Signature Page to Thirteenth Supplemental Indenture]
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.
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EXPRESS SCRIPTS HOLDING COMPANY
3.50% SENIOR NOTE DUE 2024
| No. | Principal Amount (US)$ | |
| CUSIP NO. | ||
| ISIN NO. |
Express Scripts Holding Company, 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 June 15, 2024 and to pay interest thereon, from June 5, 2014, 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 June 15 and December 15 of each year, commencing December 15, 2014, at the per annum rate of 3.50%, 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 7000 Central Parkway NE, Suite 550, Atlanta, Georgia 30328, 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).
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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.
| EXPRESS SCRIPTS HOLDING COMPANY | ||
| By: | ||
| Name: | ||
| Title: | ||
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Attest: |
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| By: | ||
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Name: |
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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 “ 3.50% Senior Notes due 2024 ” (herein called the “ Securities ”), issued under a Thirteenth Supplemental Indenture, dated as of June 5, 2014, 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 Thirteenth 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 Thirteenth Supplemental Indenture pursuant to which this Security is issued provides that Additional Securities may be issued thereunder, if certain conditions are met.
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 to consolidate, merge or transfer all or substantially all of its 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 March 17, 2024, 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 20 basis points, plus unpaid interest on the Securities to be redeemed, accrued to the Redemption Date.
At any time on or after March 17, 2024, 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 100% of the aggregate principal amount of any Securities being redeemed, plus accrued and unpaid interest on the Securities to the Redemption Date.
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(3) Mandatory Redemption . Except as provided in Section 4 below, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Securities.
(4) 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.
(5) 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.
(6) 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 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.
(7) 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.
(8) 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 Indenture also
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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.
(9) 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 Guarantors. 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.
(10) 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.
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(11) 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.
(12) 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:
Express Scripts Holding Company
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:
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.
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| Date: | Your Signature: | |||||||||
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Sign exactly as your name appears on the other side of this Security.
Signature Guarantee:
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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 ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
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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: $ .
| 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.
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EXHIBIT 2
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: | ] | |
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Exhibit 5.1
[Letterhead of Skadden, Arps, Slate, Meagher & Flom, LLP]
June 5, 2014
Express Scripts Holding Company
One Express Way
St. Louis, Missouri 63121
| Re: | Express Scripts Holding Company |
| Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as special counsel to Express Scripts Holding Company, a Delaware corporation (the “Company”), in connection with the public offering of (a) $500,000,000 aggregate principal amount of the Company’s 1.25% Senior Notes due 2017 (the “2017 Notes”), to be issued under the Indenture, dated as of November 21, 2011 (the “Base Indenture”), among the Company, certain subsidiaries of the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the Eleventh Supplemental Indenture, dated as of June 5, 2014 (the “Eleventh Supplemental Indenture”), among the Company, the Guarantors and the Trustee, (b) $1,000,000,000 aggregate principal amount of the Company’s 2.25% Senior Notes due 2019 (the “2019 Notes”), to be issued under the Base Indenture, as supplemented by the Twelfth Supplemental Indenture, dated as of June 5, 2014 (the “Twelfth Supplemental Indenture”), among the Company, the Guarantors listed on Schedule I hereto (collectively, the “Guarantors”) and the Trustee and (c) $1,000,000,000 aggregate principal amount of the Company’s 3.50% Senior Notes due 2024 (the “2024 Notes” and, together with the 2017 Notes and the 2019 Notes, the “Notes”), to be issued under the Base Indenture, as supplemented by the Thirteenth Supplemental Indenture, dated as of June 5, 2014 (the “Thirteenth Supplemental Indenture” and, together with the Base Indenture, the Eleventh Supplemental Indenture and the Twelfth Supplemental Indenture, the “Indenture”), among the Company, the Guarantors and the Trustee. The Indenture provides that the Notes are to be guaranteed by the Guarantors (such guarantees, together with the Notes, the “Securities”).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”).
In rendering the opinions stated herein, we have examined and relied upon the following:
(a) the registration statement on Form S-3 (File No. 333-196442) of the Company relating to the Securities and other securities of the Company filed with the Securities and Exchange Commission (the “Commission”) on June 2, 2014 under the Securities Act allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the “Rules and Regulations”), including the information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement being hereinafter referred to as the “Registration Statement”);
(b) the prospectus, dated June 2, 2014 (the “Base Prospectus”), which forms a part of and is included in the Registration Statement;
(c) the preliminary prospectus supplement, dated June 2, 2014 (together with the Base Prospectus, the “Preliminary Prospectus”) relating to the offering of the Securities, in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations;
(d) the prospectus supplement, dated June 2, 2014 (together with the Base Prospectus, the “Prospectus”), relating to the offering of the Securities, in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations;
(e) the pricing term sheet, dated June 2, 2014 , relating to the offering of the Securities, in the form filed with the Commission pursuant to Rule 433(d)(5)(iii) of the Rules and Regulations;
(f) an executed copy of the Underwriting Agreement, dated June 2, 2014 (the “Underwriting Agreement”), among the Company, the Guarantors and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and RBS Securities Inc. as representatives of the several Underwriters named therein (the “Underwriters”), relating to the sale by the Company and the Guarantors to the Underwriters of the Securities;
(g) an executed copy of the Base Indenture;
(h) an executed copy of the Eleventh Supplemental Indenture;
(i) an executed copy of the Twelfth Supplemental Indenture;
(j) an executed copy of the Thirteenth Supplemental Indenture;
(k) the global certificates evidencing the Notes registered in the name of Cede & Co. (the “Note Certificates”) in the form delivered by the Company to the Trustee for authentication and delivery;
(l) each notation of guarantee (the “Guarantees”) of each of the Guarantors, endorsed on the Note Certificates;
(m) an executed copy of the certificate of Catherine R. Smith, Executive Vice President and Chief Financial Officer of the Company, dated the date hereof (the “Officer’s Certificate”);
(n) an executed copy of a certificate for each Opinion Party (as defined below) of the Secretary or Assistant Secretary, as applicable, of each Opinion Party, dated the date hereof (collectively, the “Secretary’s Certificates”);
(o) a copy of each Opinion Party’s articles of incorporation, certificate of incorporation, certificate of formation or articles of organization, as applicable, certified by the Secretary of State of each such Opinion Party’s applicable jurisdiction of formation or organization, as applicable, and certified pursuant to the Secretary’s Certificates, as applicable;
(p) a copy of the Company’s by-laws, as amended and in effect on the date hereof, certified pursuant to the Company’s Secretary’s Certificate;
(q) a copy of the by-laws, limited liability company agreement or partnership agreement, as applicable, in each case as amended and in effect as of the date hereof, of each Opinion Party Guarantor (as defined below), as described on Schedule II hereto, certified pursuant to the Secretary’s Certificates, as applicable;
(r) a copy of certain resolutions of the board of directors of the Company (the “Board of Directors”), adopted on November 7, 2011 and May 7, 2014, and of the pricing committee of the Board of Directors adopted on May 30, 2014, certified pursuant to the Company’s Secretary’s Certificate;
(s) copies of certain resolutions of the board of directors, partners or other managing body, as applicable, of each Opinion Party Guarantor, as described on Schedule II hereto, certified pursuant to the Secretary’s Certificates, as applicable;
(t) copies of certificates, each dated as of June 2, 2014, and a bringdown verification thereof, dated the date hereof, from the Secretary of State of the State of Delaware with respect to each Delaware Opinion Party’s (as defined below) existence and good standing in the State of Delaware;
(u) copies of certificates, each dated as of June 2, 2014, and a bringdown verification thereof, dated the date hereof, from the Secretary of the Commonwealth of the Commonwealth of Massachusetts with respect to each Massachusetts Opinion Party’s (as defined below) legal existence and good standing with the office of the Secretary of the Commonwealth of the Commonwealth of Massachusetts; and
(v) copies of certificates, each dated as of June 2, 2014, and a bringdown verification thereof, dated the date hereof, from the office of the Secretary of State of the State of New York with respect to each New York Opinion Party’s (as defined below) existence in the State of New York.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and the Guarantors and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company, the Guarantors and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination, we have assumed the genuineness of all signatures including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company, the Guarantors and others and of public officials, including the facts and conclusions set forth in the Officer’s Certificate.
We do not express any opinion with respect to the laws of any jurisdiction other than (i) the laws of the State of New York, including the Business Corporation Law of the State of New York, (ii) the federal laws of the United States of America, and (iii) the General Corporation Law of the State of Delaware (the “DGCL”), the Delaware Limited Liability Company Act (the “DLLCA”), the Delaware Revised Uniform Partnership Act (“DRUPA”) and the Massachusetts Business Corporation Act and (iv) to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as “Opined on Law”). We do not express any opinion as to the effect of any non-Opined on Law on the opinions stated herein.
As used herein, (i) “Opinion Parties” means the Company and the Opinion Party Guarantors, (ii) “Opinion Party Guarantors” means the Delaware Opinion Party Guarantors, the Massachusetts Opinion Party Guarantors and the New York Opinion Party Guarantors, (iii) “Delaware Opinion Party Guarantors” means the Delaware Corporate Opinion Party Guarantors, the Delaware LLC Opinion Party Guarantors and the Delaware Partnership Opinion Party Guarantor, (iv) the “Delaware Corporate Opinion Party Guarantors” means each of the entities listed on Schedule II hereto under the same heading, (v) “Delaware LLC Opinion Party Guarantors” means each of the entities listed on Schedule II hereto under the same heading, (vi) “Delaware Partnership Opinion Party Guarantor” means the entity listed on Schedule II hereto under the same heading, (vii) “Massachusetts Opinion Party Guarantors” means the entities listed on Schedule II hereto under the same heading and (viii) “New York Opinion Party Guarantors” means the entities listed on Schedule II hereto under the same heading. “Non-Opinion Party Guarantors” means each of the Guarantors listed on Schedule III hereto. “Transaction Agreements” means the Indenture, the Note Certificates and the Guarantees.
Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:
1. When duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of the Underwriting Agreement and the Indenture, the Note Certtificates will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms under the laws of the State of New York.
2. When the Note Certtificates are issued and delivered by the Company against payment therefor in accordance with the terms of the Underwriting Agreement and the Indenture, the Guarantees will constitute valid and binding obligations of each applicable Guarantor, enforceable against such Guarantor in accordance with their terms under the laws of the State of New York.
The opinions stated herein are subject to the following qualifications:
(a) the opinions stated herein are limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, preference and other similar laws affecting creditors’ rights generally, and by general principles of equity (regardless of whether enforcement is sought in equity or at law);
(b) we do not express any opinion with respect to any law, rule or regulation that is applicable to any party to any of the Transaction Agreements or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;
(c) except to the extent expressly stated in the opinions contained herein, we have assumed that each of the Transaction Agreements constitutes the valid and binding obligation of each party to such Transaction Agreement, enforceable against such party in accordance with its terms;
(d) we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Agreement relating to any indemnification, contribution, exculpation, release or waiver that may be contrary to public policy or violative of federal or state securities laws, rules or regulations;
(e) we have assumed that the limited liability company agreement and the partnership agreement, as applicable, of the applicable Delaware LLC Opinion Party Guarantor and Delaware Partnership Opinion Party Guarantor set forth on Schedule II is the only limited liability company agreement or partnership agreement, as applicable, as defined under the DLLCA or the DRUPA, as applicable, of such Delaware LLC Opinion Party and Delaware Partnership Opinion Party Guarantor, as applicable;
(f) we call to your attention that irrespective of the agreement of the parties to any Transaction Agreement, a court may decline to hear a case on grounds of forum non conveniens or other doctrine limiting the availability of such court as a forum for resolution of disputes; in addition, we call to your attention that we do not express any opinion with respect to the subject matter jurisdiction of the federal courts of the United States of America in any action arising out of or relating to any Transaction Agreement;
(g) we do not express any opinion with respect to the enforceability of Section 13.1 of the Base Indenture to the extent that such section provides that the obligations of the Guarantors are absolute and unconditional irrespective of the enforceability or genuineness of the Indenture or the effect thereof on the opinions stated herein;
(h) we do not express any opinion with respect to the enforceability of the provisions contained in Section 13.11 of the Base Indenture to the extent that such provisions limit the obligation of the Guarantors under the Indenture or any right of contribution of any party with respect to such guarantee; and
(i) to the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained in any Transaction Agreement, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401 and 5-1402 and (ii) principles of comity or constitutionality;
In addition, in rendering the foregoing opinions we have assumed that:
(a) each Non-Opinion Party Guarantor (i) is duly incorporated or formed, as applicable, and is validly existing and in good standing, (ii) has requisite legal status and legal capacity under the laws of the jurisdiction of its organization or formation, as applicable, and (iii) has complied and will comply with all aspects of the laws of the jurisdiction of its organization or formation, as applicable, in connection with the transactions contemplated by, and the performance of its obligations under, the Transaction Agreements to which such Non-Opinion Party Guarantor is a party;
(b) each Non-Opinion Party Guarantor has the corporate, limited liability company or partnership, as applicable, power and authority to execute, deliver and perform all its obligations under each of the Transaction Agreements to which such Non-Opinion Party Guarantor is a party;
(c) each of the Transaction Agreements to which a Non-Opinion Party Guarantor is a party has been duly authorized, executed and delivered by all requisite corporate, limited liability company or partnership, as applicable, action on the part of such Non-Opinion Party Guarantor;
(d) neither the execution and delivery by the Company and each Guarantor of the Transaction Agreements to which the Company and each Guarantor is a party nor the consummation by the Company or such Guarantor of the issuance and sale of the Securities contemplated thereby: (i) conflicts or will conflict with the articles of incorporation, certificate of incorporation or certificate of formation, articles of organization, as applicable, of any Non-Opinion Party Guarantor, (ii) constitutes or will constitute a violation of, or a default under, any lease, indenture, instrument or other agreement to which the Company or any Guarantor or its property is subject, (iii) contravenes or will contravene any order or decree of any governmental authority to which the Company or any Guarantor or its property is subject, or (iv) violates or will violate any law, rule or regulation to which the Company or any Guarantor or its property is subject (except that we do not make the assumption set forth in this clause (iv) with respect to the Opined-on Law); and
(e) neither the execution and delivery by the Company and each Guarantor of the Transaction Agreements to which the Company or such Guarantor is a party nor the consummation by the Company and each Guarantor of the transactions contemplated thereby, including the issuance and sale of the Securities, requires or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Company’s Current Report on Form 8-K being filed on the date hereof and incorporated by reference into the Registration Statement. We also hereby consent to the reference to our firm under the heading “Legal Matters” in the Preliminary Prospectus and the Prospectus. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom, LLP
Schedule I
Guarantors
|
Legal Name |
Type of Entity |
Jurisdiction of Incorporation Formation |
||
|
Accredo Care Network, Inc. |
Corporation | Delaware | ||
|
Accredo Health Group, Inc. |
Corporation | Delaware | ||
|
Accredo Health, Incorporated |
Corporation | Delaware | ||
|
Ahg Of New York, Inc. |
Corporation | New York | ||
|
Airport Holdings, LLC |
Limited Liability Company | New Jersey | ||
|
Bio Partners In Care, Inc. |
Corporation | Missouri | ||
|
Byfield Drug, Inc. |
Corporation | Massachusetts | ||
|
Care Continuum, Inc. |
Corporation | Kentucky | ||
|
CFI of New Jersey, Inc. |
Corporation | New Jersey | ||
|
Chesapeake Infusion, Inc. |
Corporation | Florida | ||
|
CuraScript PBM Services, Inc. |
Corporation | Delaware | ||
|
CuraScript, Inc. |
Corporation | Delaware | ||
|
Diversified Pharmaceutical Services, Inc. |
Corporation | Minnesota | ||
|
Diversified Pharmaceutical Services, Inc. |
Corporation | Minnesota | ||
|
ESI Acquisition, Inc. |
Corporation | New York | ||
|
ESI Claims, Inc. |
Corporation | Delaware | ||
|
ESI Enterprises, LLC |
Limited Liability Company | Delaware | ||
|
ESI HRA, LLC |
Limited Liability Company | Delaware | ||
|
ESI Mail Order Processing, Inc. |
Corporation | Delaware | ||
|
ESI Mail Pharmacy Service, Inc. |
Corporation | Delaware | ||
|
ESI Partnership |
General Partnership | Delaware | ||
|
ESI Realty, LLC |
Limited Liability Company | New Jersey | ||
|
ESI Resources, Inc. |
Corporation | Minnesota | ||
|
ESI-GP Holdings, Inc. |
Corporation | Delaware | ||
|
Express Scripts Administrators, LLC |
Limited Liability Company | Delaware | ||
|
Express Scripts Canada Holding, Co. |
Corporation | Delaware | ||
|
Express Scripts Canada Holding, LLC |
Limited Liability Company | Delaware | ||
|
Express Scripts MSA, LLC |
Limited Liability Company | Florida | ||
|
Express Scripts Pharmaceutical Procurement, LLC |
Limited Liability Company | Delaware | ||
|
Express Scripts Pharmacy, Inc. |
Corporation | Delaware | ||
|
Express Scripts Senior Care Holdings, Inc. |
Corporation | Delaware | ||
|
Express Scripts Senior Care, Inc. |
Corporation | Delaware | ||
|
Express Scripts Services Company |
Corporation | Delaware |
|
Express Scripts Specialty Distribution Services, Inc. |
Corporation | Delaware | ||
|
Express Scripts Utilization Management Co. |
Corporation | Delaware | ||
|
Express Scripts WC, Inc. |
Corporation | Florida | ||
|
Express Scripts, Inc. |
Corporation | Delaware | ||
|
Freco, Inc. |
Corporation | Florida | ||
|
Freedom Service Company, LLC |
Limited Liability Company | Florida | ||
|
Healthbridge Reimbursement and Product Support, Inc. |
Corporation | Massachusetts | ||
|
Healthbridge, Inc. |
Corporation | Delaware | ||
|
Home Healthcare Resources, Inc. |
Corporation | Pennsylvania | ||
|
iBiologic, Inc. |
Corporation | Delaware | ||
|
IVTx, Inc. |
Corporation | Delaware | ||
|
Lynnfield Compounding Center, Inc. |
Corporation | Florida | ||
|
Lynnfield Drug, Inc. |
Corporation | Florida | ||
|
MAH Pharmacy, L.L.C. |
Limited Liability Company | |||
|
Matrix GPO LLC |
Limited Liability Company | Indiana | ||
|
Medco CDUR, L.L.C. |
Limited Liability Company | Delaware | ||
|
Medco CHP, L.L.C. |
Limited Liability Company | Delaware | ||
|
Medco Continuation Health, L.L.C. |
Limited Liability Company | Delaware | ||
|
Medco Europe , L.L.C. |
Limited Liability Company | Delaware | ||
|
Medco Europe II, L.L.C. |
Limited Liability Company | Delaware | ||
|
Medco Health New York Independent Practice Association, L.L.C. |
Corporation | New York | ||
|
Medco Health Puerto Rico, L.L.C. |
Limited Liability Company | Delaware | ||
|
Medco Health Services, Inc. |
Corporation | Delaware | ||
|
Medco Health Solutions Of Illinois, L.L.C. |
Limited Liability Company | Delaware | ||
|
Medco Health Solutions, Inc. |
Corporation | Delaware | ||
|
Medco of Willingboro Urban Renewal, L.L.C. |
Limited Liability Company | New Jersey | ||
|
Medcohealth.com, L.L.C. |
Limited Liability Company | New Jersey | ||
|
Medco Research Institute, L.L.C. |
Limited Liability Company | Delaware | ||
|
Mooresville On-Site Pharmacy LLC |
Limited Liability Company | Delaware | ||
|
National Prescription Administrators, Inc. |
Corporation | New Jersey | ||
|
National RX Services No.3, Inc. of Ohio |
Corporation | Ohio | ||
|
Priority Healthcare Corporation |
Corporation | Indiana | ||
|
Priority Healthcare Corporation West |
Corporation | Nevada | ||
|
Priority Healthcare Distribution, Inc. |
Corporation | Florida | ||
|
Priority Healthcare Pharmacy, Inc. |
Corporation | Florida | ||
|
Priorityhealthcare.com, Inc. |
Corporation | Florida | ||
|
Sinuspharmacy, Inc. |
Corporation | Florida | ||
|
Specialty Infusion Pharmacy, Inc. |
Corporation | Florida | ||
|
Spectracare Healthcare Ventures, Inc. |
Corporation | Kentucky | ||
|
Spectracare Infusion Pharmacy, Inc. |
Corporation | Kentucky |
|
Spectracare of Indiana |
Partnership | Indiana | ||
|
Spectracare, Inc. |
Corporation | Kentucky | ||
|
Systemed, L.L.C. |
Limited Liability Company | Delaware | ||
|
The Vaccine Consortium, LLC |
Limited Liability Company | Maryland | ||
|
Therapease Cuisine, Inc. |
Corporation | Wisconsin | ||
|
TVC Acquisition Co., INC. |
Corporation | Delaware | ||
|
UBC Late Stage, Inc. |
Corporation | Missouri | ||
|
United Biosource Holdings, Inc. |
Corporation | Delaware | ||
|
United Biosource LLC |
Limited Liability Company | Delaware | ||
|
United Biosource Patient Solutions, Inc. |
Corporation | Delaware | ||
|
Value Health, Inc. |
Corporation | Delaware | ||
|
YourPharmacy.com, Inc. |
Corporation | Delaware |
Schedule II
Opinion Party Guarantors
|
Legal Name |
Type of
Entity |
Jurisdiction
of Incorporation Formation |
By-laws,
Limited Liability Company Agreement or Partnership Agreement |
Date of By-
laws,
Limited
Liability Company Agreement or Partnership Agreement |
Parties to
Limited Liability Company Agreement or Partnership Agreement |
Guarantee Authorizing Resolutions |
||||||
| Delaware Corporate Party Guarantors | ||||||||||||
|
Accredo Care Network, Inc. |
Corporation | Delaware | By-laws | April 2, 2012 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Accredo Health Group, Inc. |
Corporation | Delaware | By-laws | April 2, 2012 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Accredo Health, Incorporated |
Corporation | Delaware | By-laws | April 2, 2012 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
CuraScript PBM Services, Inc. |
Corporation | Delaware | By-laws | January 30, 2004 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
CuraScript, Inc. |
Corporation | Delaware | By-laws | January 30, 2004 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
ESI Claims, Inc. |
Corporation | Delaware | By-laws | December 3, 1999 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
ESI Mail Order Processing, Inc. |
Corporation | Delaware | By-laws | December 1, 2009 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
ESI Mail Pharmacy Service, Inc. |
Corporation | Delaware | By-laws | November 11, 1999 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
ESI-GP Holdings, Inc. |
Corporation | Delaware | By-laws | June 9, 2009 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Express Scripts Canada Holding, Co. |
Corporation | Delaware | By-laws | April 12, 2002 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Express Scripts Pharmacy, Inc. |
Corporation | Delaware | By-laws | June 27, 2013 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Express Scripts Senior Care Holdings, Inc. |
Corporation | Delaware | By-laws | April 8, 2005 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Express Scripts Senior Care, Inc. |
Corporation | Delaware | By-laws | April 25, 2005 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Express Scripts Services Company |
Corporation | Delaware | By-laws | November 5, 1998 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Express Scripts Specialty Distribution Services, Inc. |
Corporation | Delaware | By-laws | December 3, 1999 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Express Scripts Utilization Management Co. |
Corporation | Delaware | By-laws | November 30, 1999 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Express Scripts, Inc. |
Corporation | Delaware | By-laws | April 2, 2012 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Healthbridge, Inc. |
Corporation | Delaware | By-laws | May 28, 2009 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
iBiologic, Inc. |
Corporation | Delaware | By-laws | January 30, 2004 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
IVTx, Inc. |
Corporation | Delaware | By-laws | October 3, 1997 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Medco Health Services, Inc. |
Corporation | Delaware | By-laws | April 2, 2012 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Medco Health Solutions, Inc. |
Corporation | Delaware | By-laws | April 2, 2012 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
TVC Acquisition Co., INC. |
Corporation | Delaware | By-laws | April 2, 2012 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
United Bisource Holdings, Inc. |
Corporation | Delaware | By-laws | June 25, 2013 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
United Bisource Patient Solutions, Inc. |
Corporation | Delaware | By-laws | April 2, 2012 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Value Health, Inc. |
Corporation | Delaware | By-laws | April 12, 2002 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
YourPharmacy.com, Inc. |
Corporation | Delaware | By-laws | April 12, 2002 | N/A | Board of Directors, dated May 7, 2014 | ||||||
| Delaware LLC Party Guarantors | ||||||||||||
|
ESI Enterprises, LLC |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
June 30, 2003 |
Express
Scripts, Inc., Express- Scripts Specialty Distribution Services, ESI Mail Pharmacy Services, Inc. and ESI-GP Holdings, Inc. |
Written Consent of the Members dated May 7, 2014 | ||||||
|
ESI HRA, LLC |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
October 10, 2007 |
Express
Scripts, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Express Scripts Administrators, LLC |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
November 1, 2013 |
Medco
Health Solutions, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Express Scripts Canada Holding, LLC |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
November 20, 2009 |
Express
Scripts Canada Holding Co. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Express Scripts Pharmaceutical Procurement, LLC |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
November 1, 2006 |
Express
Scripts, Inc. and ESI Mail Pharmacy Service, Inc. |
Written Consent of the Members dated May 7, 2014 | ||||||
|
MAH Pharmacy, L.L.C. |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
April 2, 2012 |
Medco Health
Solutions, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Medco CDUR, L.L.C. |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
April 2, 2012 |
Medco Health
Solutions, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Medco CHP, L.L.C. |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
April 2, 2012 |
Medco Health
Solutions, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Medco Continuation Health, L.L.C. |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
April 2, 2012 |
Medco Health
Solutions, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Medco Europe, L.L.C. |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
April 2, 2012 |
Medco Health
Solutions, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Medco Europe II, L.L.C. |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
April 2, 2012 |
Medco
Europe, L.L.C. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Medco Health Puerto Rico, L.L.C. |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
April 2, 2012 |
Medco
Health Solutions, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Medco Health Solutions Of Illinois, L.L.C. |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
April 2, 2012 |
Medco
Health Solutions, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Medco Research Institute, L.L.C. |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
April 2, 2012 |
Medco
Health Solutions, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Mooresville On-Site Pharmacy LLC |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
January 29, 2009 |
ESI Mail
Pharmacy Service, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
Systemed, L.L.C. |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
April 2, 2012 |
Medco
Health Solutions, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
|
United Biosource LLC |
Limited
Liability Company |
Delaware |
Limited
Liability Company Agreement |
June 27, 2013 |
United
BioSource Holdings, Inc. |
Written Consent of the Board of Directors of the Sole Member dated May 7, 2014 | ||||||
| Delaware Partnership Party Guarantor | ||||||||||||
|
ESI Partnership |
General
Partnership |
Delaware |
Partnership
Agreement |
May 1, 2001 |
Express
Scripts, Inc. and ESI-GP Holdings, Inc. |
Written Consent of the Members Partners dated May 7, 2014 | ||||||
| Massachusetts Opinion Party Guarantors | ||||||||||||
|
Byfield Drug, Inc. |
Corporation | Massachusetts | By-laws | June 14, 2002 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Healthbridge Reimbursement and Product Support, Inc. |
Corporation | Massachusetts | By-laws | January 23, 1988 | N/A | Board of Directors, dated May 7, 2014 | ||||||
| New York Opinion Party Guarantors | ||||||||||||
|
Ahg Of New York, Inc. |
Corporation | New York | By-laws | April 2, 2012 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
ESI Acquisition, Inc. |
Corporation | New York | By-laws | December 1, 2009 | N/A | Board of Directors, dated May 7, 2014 | ||||||
|
Medco Health New York Independent Practice Association, L.L.C. |
Corporation | New York | By-laws | April 2, 2012 | N/A | Board of Directors, dated May 7, 2014 | ||||||
Schedule III
Non-Opinion Party Guarantors
|
Legal Name |
Type of Entity |
Jurisdiction of Incorporation or Formation |
||
|
Airport Holdings, LLC |
Limited Liability Company | New Jersey | ||
|
Bio Partners In Care, Inc. |
Corporation | Missouri | ||
|
Care Continuum, Inc. |
Corporation | Kentucky | ||
|
CFI of New Jersey, Inc. |
Corporation | New Jersey | ||
|
Chesapeake Infusion, Inc. |
Corporation | Florida | ||
|
Diversified Pharmaceutical Services, Inc. |
Corporation | Minnesota | ||
|
ESI Realty, LLC |
Limited Liability Company | New Jersey | ||
|
ESI Resources, Inc. |
Corporation | Minnesota | ||
|
Express Scripts MSA, LLC |
Limited Liability Company | Florida | ||
|
Express Scripts WC, Inc. |
Corporation | Florida | ||
|
Freco, Inc. |
Corporation | Florida | ||
|
Freedom Service Company, LLC |
Limited Liability Company | Florida | ||
|
Home Healthcare Resources, Inc. |
Corporation | Pennsylvania | ||
|
Lynnfield Compounding Center, Inc. |
Corporation | Florida | ||
|
Lynnfield Drug, Inc. |
Corporation | Florida | ||
|
Matrix GPO LLC |
Limited Liability Company | Indiana | ||
|
Medco Of Willingboro Urban Renewal, L.L.C. |
Limited Liability Company | New Jersey | ||
|
Medcohealth.com, L.L.C. |
Limited Liability Company | New Jersey | ||
|
National Prescription Administrators, Inc. |
Corporation | New Jersey | ||
|
National RX Services No.3, Inc. of Ohio |
Corporation | Ohio | ||
|
Priority Healthcare Corporation |
Corporation | Indiana | ||
|
Priority Healthcare Corporation West |
Corporation | Nevada | ||
|
Priority Healthcare Distribution, Inc. |
Corporation | Florida | ||
|
Priority Healthcare Pharmacy, Inc. |
Corporation | Florida | ||
|
Priorityhealthcare.com, Inc. |
Corporation | Florida | ||
|
Sinuspharmacy, Inc. |
Corporation | Florida | ||
|
Specialty Infusion Pharmacy, Inc. |
Corporation | Florida | ||
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Spectracare Healthcare Ventures, Inc. |
Corporation | Kentucky | ||
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Spectracare Infusion Pharmacy, Inc. |
Corporation | Kentucky | ||
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Spectracare of Indiana |
Partnership | Indiana | ||
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Spectracare, Inc. |
Corporation | Kentucky | ||
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The Vaccine Consortium, LLC |
Limited Liability Company | Maryland | ||
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Therapease Cuisine, Inc. |
Corporation | Wisconsin | ||
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UBC Late Stage, Inc. |
Corporation | Missouri |