Indemnification Agreement with Express Scripts, Inc. and Executives


    
      

        INDEMNIFICATION
          AGREEMENT

        


        dated
          as of __________________________, between

        


        EXPRESS
          SCRIPTS, INC. (the "Company"),

        and

        [Name]
          ("Indemnitee")

         

      

      WHEREAS,
        the Board of Directors has determined that it is in the best interests of
        the
        Company and the Company’s stockholders to attract and retain the most capable
        persons as directors and officers of the Company and that the Company should
        act
        to assure such persons that there will be adequate certainty of protection
        through insurance and indemnification against risks of claims and actions
        against them arising out of their service to and activities on behalf of
        the
        Company; and

      


      WHEREAS,
        the Company has adopted provisions in its current Amended and Restated
        Certificate of Incorporation, as amended, and its Third Amended and Restated
        By-laws (collectively, the "Charter Documents") providing for indemnification
        of
        its officers and directors to the fullest extent permitted by Section 145
        of the
        General Corporation Law of the State of Delaware, and the Company wishes
        to
        clarify and enhance the rights and obligations of the Company and Indemnitee
        with respect to indemnification; and

      


      WHEREAS,
        in order to induce and encourage highly experienced and capable persons such
        as
        Indemnitee to serve and continue to serve as directors and officers of the
        Company and in any other capacity with respect to the Company, and to otherwise
        promote the desirable end that such persons will resist what they consider
        unjustified lawsuits and claims made against them in connection with the
        good
        faith performance of their duties to the Company, with the knowledge that
        certain costs, judgments, penalties, fines, liabilities and expenses incurred
        by
        them in their defense of such litigation are to be borne by the Company and
        they
        will receive the maximum protection against such risks and liabilities as
        may be
        afforded by law, the Board of Directors of the Company has determined that
        the
        following Agreement is reasonable and prudent to promote and ensure the best
        interests of the Company and its stockholders; and

      


      WHEREAS,
        the Company desires to have Indemnitee continue to serve as a director or
        officer of the Company and in such other capacity with respect to the Company
        as
        the Company may request, as the case may be, free from undue concern for
        unpredictable, inappropriate or unreasonable legal risks and personal
        liabilities by reason of Indemnitee acting in good faith in the performance
        of
        Indemnitee's duty to the Company; and Indemnitee desires to continue so to
        serve
        the Company, provided, and on the express condition, that he or she is furnished
        with the indemnity set forth hereinafter;

      


      Now,
        therefore, in consideration of Indemnitee's continued service as a director
        or
        officer of the Company, the parties hereto agree as follows:

      


      1. Service
        by Indemnitee.
        Indemnitee will serve and/or continue to serve as a director or officer of
        the
        Company or, at the Company's request and the agreement of the Indemnitee,
        another enterprise, faithfully and to the best of Indemnitee's ability so
        long
        as Indemnitee is duly elected or appointed and until such time as Indemnitee
        is
        removed as permitted by law or tenders a resignation in writing.

       

      2. Indemnification.
        The
        Company shall indemnify Indemnitee to the fullest extent permitted by the
        Delaware General Corporation Law (the "DGCL") in effect on the date hereof
        or as
        such law may from time to time be amended (but, in the case of any such
        amendment, only to the extent that such amendment permits the Company to
        provide
        broader indemnification rights than said law permitted the Company to provide
        prior to such amendment). Without diminishing the scope of the indemnification
        provided by this Section, the rights of indemnification of Indemnitee provided
        hereunder shall include but shall not be limited to those rights hereinafter
        set
        forth, except that no indemnification shall be paid to Indemnitee:

      


      (a) to
        the
        extent expressly prohibited by the DGCL or the Charter Documents;

      


      (b) for
        which
        payment is actually made to Indemnitee under a valid and collectible insurance
        policy or under a valid and enforceable indemnity clause, by-law or agreement
        of
        the Company or any other company or organization on whose board Indemnitee
        serves at the request of the Company, except in respect of any indemnity
        exceeding the payment under such insurance, clause, by-law or
        agreement;

      


      (c) in
        connection with an action, suit or proceeding, or part thereof (including
        claims
        and counterclaims) initiated by Indemnitee, except a judicial proceeding
        or
        arbitration pursuant to Section 10 below to enforce rights under this Agreement,
        unless the action, suit or proceeding (or part thereof) was authorized by
        the
        Board of Directors of the Company;

      


      (d) with
        respect to any action, suit or proceeding brought by or on behalf of the
        Company
        against Indemnitee that is authorized by the Board of Directors of the Company,
        except as provided in Sections 4, 5 and 6 below.

      


      3. Action
        or Proceedings Other than an Action by or in the Right of the
        Company.
        Except
        as limited by Section 2 above, Indemnitee shall be entitled to the
        indemnification rights provided in this Section if Indemnitee is a party
        or is
        threatened to be made a party to any Proceeding (other than an action by
        or in
        the name of the Company) by reason of the fact that Indemnitee is or was
        a
        director, officer, employee or agent of the Company, or is or was serving
        at the
        request of the Company as a director, officer, employee or agent or fiduciary
        of
        any other entity (including, but not limited to, another corporation,
        partnership, joint venture, employee benefit plan or trust); or by reason
        of
        anything done or not done by Indemnitee in any such capacity. Pursuant to
        this
        Section, Indemnitee shall be indemnified against all costs, judgments,
        penalties, fines, liabilities, amounts paid in settlement by or on behalf
        of
        Indemnitee, and Expenses actually and reasonably incurred by Indemnitee in
        connection with such Proceeding, if Indemnitee acted in good faith and in
        a
        manner he reasonably believed to be in or not opposed to the best interests
        of
        the Company, and with respect to any criminal Proceeding, had no reasonable
        cause to believe his or her conduct was unlawful.

      


      4. Indemnity
        in Proceedings by or in the Name of the Company.
        Except
        as limited by Section 2 above, Indemnitee shall be entitled to the
        indemnification rights provided in this Section if Indemnitee was or is a
        party
        or is threatened to be made a party to any Proceeding brought by or in the
        name
        of the Company to procure a judgment in its favor by reason of the fact that
        Indemnitee is or was a director, officer, employee or agent or fiduciary
        of the
        Company, or by reason of anything done or not done by Indemnitee in any such
        capacity. Pursuant to this Section, Indemnitee shall be indemnified against
        all
        costs, judgments, penalties, fines, liabilities, amounts paid in settlement
        by
        or on behalf of Indemnitee, and Expenses actually and reasonably incurred
        by
        Indemnitee in connection with such Proceeding if Indemnitee acted in good
        faith
        and in a manner Indemnitee reasonably believed to be in or not opposed to
        the
        best interests of the Company; provided, however, that no such indemnification
        shall be made in respect of any claim, issue, or matter as to which the DGCL
        expressly prohibits such indemnification by reason of any adjudication of
        liability of Indemnitee to the Company, unless and only to the extent that
        the
        Court of Chancery of the State of Delaware or the court in which such action
        or
        suit was brought shall determine upon application that, despite the adjudication
        of liability but in view of all the circumstances of the case, Indemnitee
        is
        entitled to indemnification for such costs, judgments, penalties, fines,
        liabilities and Expenses as such court shall deem proper.

      


      5. Indemnification
        for Costs, Charges and Expenses of Successful Party.
        Notwithstanding the limitations of Section 2(d), 3 and 4 above, to the extent
        that Indemnitee has been successful, on the merits or otherwise, in whole
        or in
        part, in defense of any action, suit or proceeding (including an action,
        suit or
        proceeding brought by or on behalf of the Company) or in defense of any claim,
        issue or matter therein, including, without limitation, the dismissal of
        any
        action without prejudice, or if it is ultimately determined that Indemnitee
        is
        otherwise entitled to be indemnified against Expenses, Indemnitee shall be
        indemnified against all Expenses actually and reasonably incurred in connection
        therewith.

      


      6. Partial
        Indemnification.
        If
        Indemnitee is entitled under any provision of this Agreement to indemnification
        by the Company for some or a portion of the costs, judgments, penalties,
        fines,
        liabilities or Expenses actually and reasonably incurred in connection with
        any
        action, suit or proceeding (including an action, suit or proceeding brought
        by
        or on behalf of the Company), but not, however, for all of the total amount
        thereof, the Company shall nevertheless indemnify Indemnitee for the portion
        of
        such costs, judgments, penalties, fines, liabilities and Expenses actually
        and
        reasonably incurred to which Indemnitee is entitled.

      


      7. Indemnification
        for Expenses of a Witness.
        Notwithstanding any other provision of this Agreement, to the maximum extent
        permitted by applicable law, Indemnitee shall be entitled to indemnification
        against all Expenses actually and reasonably incurred or suffered by Indemnitee
        or on Indemnitee's behalf if Indemnitee appears as a witness or otherwise
        incurs
        legal or other Expenses as a result of or related to Indemnitee's service
        as a
        director or officer of the Company, in any threatened, pending or completed
        legal, administrative, investigative or other proceeding or matter to which
        Indemnitee neither is, nor is threatened to be made, a party.

      


      8. Determination
        of Entitlement to Indemnification.
        Upon
        written request by Indemnitee for indemnification pursuant to Sections 3,
        4, 5,
        6 or 7 the entitlement of Indemnitee to indemnification, to the extent not
        provided pursuant to the terms of this Agreement, shall, other than in case
        of a
        Change of Control (other than a Change in Control which has been approved
        by a
        majority of the Company's Board of Directors who were directors immediately
        prior to such Change in Control), be determined by the following person or
        persons who shall be empowered to make such determination: (a) the Board
        of
        Directors of the Company by a majority vote of Disinterested Directors, whether
        or not such majority constitutes a quorum; (b) a committee of Disinterested
        Directors designated by a majority vote of such directors, whether or not
        such
        majority constitutes a quorum; (c) if there are no Disinterested Directors,
        or
        if the Disinterested Directors so direct, by Independent Counsel in a written
        opinion to the Board of Directors, a copy of which shall be delivered to
        Indemnitee; or (d) the stockholders of the Company. Other than in case of
        a
        Change of Control (other than a Change in Control which has been approved
        by a
        majority of the Company's Board of Directors who were directors immediately
        prior to such Change in Control), such Independent Counsel shall be selected
        by
        the Board of Directors and approved by Indemnitee. Upon failure of the Board
        so
        to select such Independent Counsel or upon failure of Indemnitee so to approve,
        such Independent Counsel shall be selected upon application to a court of
        competent jurisdiction. Such determination of entitlement to indemnification
        shall be made not later than 30 calendar days after receipt by the Company
        of a
        written request for indemnification. Such request shall include documentation
        or
        information which is necessary for such determination and which is reasonably
        available to Indemnitee. Any Expenses incurred by Indemnitee in connection
        with
        a request for indemnification or payment of Expenses hereunder, under any
        other
        agreement, any provision of the Charter Documents or any directors' and
        officers' liability insurance, shall be borne by the Company. The Company
        hereby
        indemnifies Indemnitee for any such Expense and agrees to hold Indemnitee
        harmless therefrom irrespective of the outcome of the determination of
        Indemnitee’s entitlement to indemnification. If the person making such
        determination shall determine that Indemnitee is entitled to indemnification
        as
        to part (but not all) of the application for indemnification, such person
        shall
        reasonably prorate such partial indemnification among the claims, issues
        or
        matters at issue at the time of the determination.

      


      The
        Company agrees that if there is a Change in Control of the Company (other
        than a
        Change in Control which has been approved by a majority of the Company's
        Board
        of Directors who were directors immediately prior to such Change in Control)
        then the entitlement of Indemnitee with respect to all matters thereafter
        arising concerning the rights of Indemnitee to indemnity payments under this
        Agreement or any other agreement or Charter Document now or hereafter in
        effect
        relating to events indemnifiable under this Agreement, shall be determined
        by
        Independent Counsel in a written opinion. In case of a Change of Control
        (other
        than a Change in Control which has been approved by a majority of the Company's
        Board of Directors who were directors immediately prior to such Change in
        Control), Independent Counsel shall be selected by Indemnitee and approved
        by
        the Company (which approval shall not be unreasonably withheld). Upon failure
        of
        the Indemnitee so to select such Independent Counsel or upon failure of the
        Company so to approve, such Independent Counsel shall be selected upon
        application to a court of competent jurisdiction. Independent Counsel, among
        other things, shall render its written opinion to the Company and Indemnitee
        as
        to whether and to what extent the Indemnitee would be permitted to be
        indemnified under applicable law. The Company agrees to pay the reasonable
        fees
        of the Independent Counsel referred to above and to indemnify fully such
        counsel
        against any and all expenses (including attorneys' fees), claims, liabilities
        and damages arising out of or relating to this Agreement or its engagement
        pursuant hereto.

       

      9. Presumptions
        and Effect of Certain Proceedings.
        The
        Secretary of the Company shall, promptly upon receipt of Indemnitee’s request
        for indemnification, advise in writing the Board of Directors or such other
        person or persons empowered to make the determination as provided in Section
        8
        above that Indemnitee has made such request for indemnification. Upon making
        such request for indemnification, Indemnitee shall be presumed to be entitled
        to
        indemnification hereunder and the Company shall have the burden of proof
        in
        making any determination contrary to such presumption. If the person or persons
        so empowered to make such determination shall have failed to make the requested
        determination with respect to indemnification within 30 calendar days after
        receipt by the Company of such request, a requisite determination of entitlement
        to indemnification shall be deemed to have been made and Indemnitee shall
        be
        absolutely entitled to such indemnification, absent actual and material fraud
        in
        the request for indemnification. The termination of any Proceeding described
        in
        Sections 3 or 4 above by judgment, order, settlement or conviction, or upon
        a
        plea of nolo contendere or its equivalent, shall not, of itself: (a) create
        a
        presumption that Indemnitee did not act in good faith and in a manner which
        Indemnitee reasonably believed to be in or not opposed to the best interests
        of
        the Company, or, with respect to any criminal Proceeding, that Indemnitee
        had
        reasonable cause to believe that Indemnitee's conduct was unlawful; or (b)
        otherwise adversely affect the rights of Indemnitee to indemnification except
        as
        may be provided herein.

      


      10. Remedies
        of Indemnitee in Cases of Determination not to Indemnify or to Pay
        Expenses.
        In the
        event that a determination is made that Indemnitee is not entitled to
        indemnification hereunder or if payment has not been timely made following
        a
        determination of entitlement to indemnification pursuant to Sections 8 and
        9
        above, or if Expenses are not paid pursuant to Section 15 below, Indemnitee
        shall be entitled to final adjudication in a court of competent jurisdiction
        of
        entitlement to such indemnification or payment. Alternatively, Indemnitee
        at
        Indemnitee's option may seek an award in an arbitration to be conducted by
        a
        single arbitrator pursuant to the rules of the American Arbitration Association,
        such award to be made within sixty days following the filing of the demand
        for
        arbitration. The Company shall not oppose Indemnitee’s right to seek any such
        adjudication or award in arbitration or any other claim. The determination
        in
        any such judicial proceeding or arbitration shall be made de novo and Indemnitee
        shall not be prejudiced by reason of a determination (if so made) pursuant
        to
        Sections 8 or 9 that Indemnitee is not entitled to indemnification. If a
        determination is made or deemed to have been made pursuant to the terms of
        Section 8 or 9 above that Indemnitee is entitled to indemnification, the
        Company
        shall be bound by such determination and is precluded from asserting that
        such
        determination has not been made or that the procedure by which such
        determination was made is not valid, binding and enforceable. The Company
        further agrees to stipulate in any such court or before any such arbitrator
        that
        the Company is bound by all the provisions of this Agreement and is precluded
        from making any assertions to the contrary. If the court or arbitrator shall
        determine that Indemnitee is entitled to any indemnification or payment of
        Expenses hereunder, the Company shall pay all Expenses actually and reasonably
        incurred by Indemnitee in connection with such adjudication or award in
        arbitration (including, but not limited to, any appellate
        Proceedings).

      


      11. Other
        Rights to Indemnification.
        Indemnification and payment of Expenses provided by this Agreement shall
        not be
        deemed exclusive of any other rights to which Indemnitee may now or in the
        future be entitled under any provision of the Charter Documents or other
        organizational documents of the Company, vote of stockholders or Disinterested
        Directors, provision of law, agreement or otherwise. To the extent that a
        change
        in the DGCL (whether by statute or judicial decision) permits greater
        indemnification by agreement than would be afforded currently under the Charter
        Documents and this Agreement, it is the intent of the parties hereto that
        Indemnitee shall enjoy by this Agreement the greater benefits so afforded
        by
        such change.

      


      12. Expenses
        to Enforce Agreement.
        In the
        event that Indemnitee is subject to or intervenes in any Proceeding in which
        the
        validity or enforceability of this Agreement is at issue or seeks an
        adjudication or award in arbitration to enforce Indemnitee's rights under,
        or to
        recover damages for breach of, this Agreement, Indemnitee, if Indemnitee
        prevails in whole or in part in such action, shall be entitled to recover
        from
        the Company and shall be indemnified by the Company against any actual Expenses
        incurred by Indemnitee.

      


      13. Continuation
        of Indemnity.
        All
        agreements and obligations of the Company contained herein shall continue
        during
        the period Indemnitee is a director, officer, employee or agent of the Company
        or is serving at the request of the Company as a director, officer, employee
        or
        agent or fiduciary of any other entity (including, but not limited to, another
        corporation, partnership, joint venture or trust) of the Company and shall
        continue thereafter with respect to any possible claims based on the fact
        that
        Indemnitee was a director, officer employee or agent of the Company or was
        serving at the request of the Company as a director, officer, employee or
        agent
        or fiduciary of any other entity (including, but not limited to, another
        corporation, partnership, joint venture or trust). This Agreement shall be
        binding upon all successors and assigns of the Company (including any transferee
        of all or substantially all of its assets and any successor by merger or
        operation of law) and shall inure to the benefit of the heirs, personal
        representatives and estate of Indemnitee.

      


      14. Notification
        and Defense of Claim.
        Promptly after receipt by Indemnitee of notice of any Proceeding, Indemnitee
        will, if a claim in respect thereof is to be made against the Company under
        this
        Agreement, notify the Company in writing of the commencement thereof; but
        the
        omission so to notify the Company will not relieve it from any liability
        that it
        may have to Indemnitee. Notwithstanding any other provision of this Agreement,
        with respect to any such Proceeding of which Indemnitee notifies the
        Company:

      


      (a) The
        Company shall be entitled to participate therein at its own expense;
        and

      


      (b) Except
        as
        otherwise provided in this Section 14(b), to the extent that it may wish,
        the
        Company, jointly with any other indemnifying party similarly notified, shall
        be
        entitled to assume the defense thereof, with counsel satisfactory to Indemnitee.
        After notice from the Company to Indemnitee of its election so to assume
        the
        defense thereof, the Company shall not be liable to Indemnitee under this
        Agreement for any expenses of counsel subsequently incurred by Indemnitee
        in
        connection with the defense thereof except as otherwise provided below.
        Indemnitee shall have the right to employ Indemnitee's own counsel in such
        Proceeding, but the fees and expenses of such counsel incurred after notice
        from
        the Company of its assumption of the defense thereof shall be at the expense
        of
        Indemnitee unless (i) the employment of counsel by Indemnitee has been
        authorized by the Company, (ii) Indemnitee shall have reasonably concluded
        that
        there may be a conflict of interest between the Company and Indemnitee in
        the
        conduct of the defense of such action or (iii) the Company shall not within
        60
        calendar days of receipt of notice from Indemnitee in fact have employed
        counsel
        to assume the defense of the action, in each of which cases the fees and
        expenses of Indemnitee's counsel shall be at the expense of the Company.
        The
        Company shall not be entitled to assume the defense of any Proceeding brought
        by
        or on behalf of the Company or as to which Indemnitee shall have made the
        conclusion provided for in (ii) above; and

      


      (c) If
        the
        Company has assumed the defense of a Proceeding, the Company shall not be
        liable
        to indemnify Indemnitee under this Agreement for any amounts paid in settlement
        of any Proceeding effected without the Company's written consent. The Company
        shall not settle any Proceeding in any manner that would impose any penalty
        or
        limitation on or disclosure obligation with respect to Indemnitee without
        Indemnitee’s written consent. Neither the Company nor Indemnitee will
        unreasonably withhold its consent to any proposed settlement.

      


      15. Payment
        of Expenses.
        All
        Expenses incurred by Indemnitee in advance of the final disposition of any
        Proceeding shall be paid by the Company at the request of Indemnitee, each
        such
        payment to be made within twenty calendar days after the receipt by the Company
        of a statement or statements from Indemnitee requesting such payment or payments
        from time to time. Indemnitee’s entitlement to such Expenses shall include those
        incurred in connection with any Proceeding by Indemnitee seeking a judgment
        in
        court or an adjudication or award in arbitration pursuant to this Agreement
        (including the enforcement of this provision). Such statement or statements
        shall reasonably evidence the expenses and costs incurred by Indemnitee in
        connection therewith and shall include or be accompanied by an undertaking,
        in
        substantially the form attached hereto as Exhibit 1, by or on behalf of
        Indemnitee to reimburse such amount if it is finally determined, after all
        appeals by a court of competent jurisdiction that Indemnitee is not entitled
        to
        be indemnified against such Expenses by the Company as provided by this
        Agreement or otherwise. Indemnitee's undertaking to reimburse any such amounts
        is not required to be secured.

       

      16. Separability;
        Prior Indemnification Agreements.
        If any
        provision or provisions of this Agreement shall be held to be invalid, illegal
        or unenforceable for any reason whatsoever (a) the validity, legality and
        enforceability of the remaining provisions of this Agreement (including without
        limitation, all portions of any paragraphs of this Agreement containing any
        such
        provision held to be invalid, illegal or unenforceable, that are not by
        themselves invalid, illegal or unenforceable) shall not in any way be affected
        or impaired thereby, and (b) to the fullest extent possible, the provisions
        of
        this Agreement (including, without limitation, all portions of any paragraph
        of
        this Agreement containing any such provision held to be invalid, illegal
        or
        unenforceable, that are not themselves invalid, illegal or unenforceable)
        shall
        be construed so as to give effect to the intent of the parties that the Company
        provide protection to Indemnitee to the fullest enforceable extent. This
        Agreement shall supersede and replace any prior indemnification agreements
        entered into by and between the Company and Indemnitee and any such prior
        agreements shall be terminated upon execution of this Agreement.

      


      17. Headings;
        References; Pronouns.
        The
        headings of the sections of this Agreement are inserted for convenience only
        and
        shall not be deemed to constitute part of this Agreement or to affect the
        construction thereof. References herein to section numbers are to sections
        of
        this Agreement. All pronouns and any variations thereof shall be deemed to
        refer
        to the masculine, feminine, neuter, singular or plural as
        appropriate.

      


      18. Definitions.
        For
        purposes of this Agreement:

      


      (a) "Change
        in Control" shall be deemed to have occurred if (i) any "person" (as such
        term
        is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
        as
        amended), other than a trustee or other fiduciary holding securities under
        an
        employee benefit plan of the Company or a corporation owned directly or
        indirectly by the stockholders of the Company in substantially the same
        proportions as their ownership of stock of the Company, is or becomes the
        "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
        indirectly, of securities of the Company representing 25% or more of the
        total
        voting power represented by the Company's then outstanding Voting Securities,
        or
        (ii) during any period of two consecutive years, individuals who at the
        beginning of such period constitute the Board of Directors of the Company
        and
        any new director whose election by the Board of Directors or nomination for
        election by the Company's stockholders was approved by a vote of at least
        two-thirds (2/3) of the directors then still in office who either were directors
        at the beginning of the period or whose election or nomination for election
        was
        previously so approved, cease for any reason to constitute a majority thereof,
        or (iii) the stockholders of the Company approve a merger or consolidation
        of
        the Company with any other corporation, other than a merger or consolidation
        which would result in the Voting Securities of the Company outstanding
        immediately prior thereto continuing to represent (either by remaining
        outstanding or by being converted into Voting Securities of the surviving
        entity) at least 65% of the total voting power represented by the Voting
        Securities of the Company or such surviving entity outstanding immediately
        after
        such merger or consolidation, or the stockholders of the Company approve
        a plan
        of complete liquidation of the Company or an agreement for the sale or
        disposition by the Company of (in one transaction or a series of transactions)
        all or substantially all the Company's assets.

      


      (b) “Disinterested
        Director” means a director of the Company who is not or was not a party to the
        Proceeding in respect of which indemnification is being sought by
        Indemnitee.

      


      (c) "Expenses"
        includes, without limitation, expenses (including, without limitation,
        interests, assessments and other charges) incurred in connection with the
        defense or settlement of any and all investigations, judicial or administrative
        proceedings or appeals, attorneys' fees, witness fees and expenses, fees
        and
        expenses of accountants and other advisors, retainers and disbursements and
        advances thereon, the premium, security for, and other costs relating to
        any
        bond (including cost bonds, appraisal bonds or their equivalents), and any
        expenses of establishing a right to indemnification under Sections 8, 10
        and 12
        above but shall not include the amount of judgments, fines or penalties actually
        levied against Indemnitee.

      


      (d) “Independent
        Counsel” means a law firm or a member of a law firm that neither is presently
        nor in the past five years has been retained to represent: (i) the Company
        or
        Indemnitee in any matter material to either such party, or (ii) any other
        party
        to the Proceeding giving rise to a claim for indemnification hereunder.
        Notwithstanding the foregoing, the term “Independent Counsel” shall not include
        any person who, under the applicable standards of professional conduct then
        prevailing, would have a conflict of interest in representing either the
        Company
        or Indemnitee in an action to determine Indemnitee’s right to indemnification
        under this Agreement.

      


      (e) "Proceeding"
        includes any threatened, pending or completed investigation, action, suit
        or
        other proceeding, whether brought in the name of the Company or otherwise,
        against Indemnitee, for which indemnification is not prohibited under Sections
        2(a)-(c) above and whether of a civil, criminal, administrative or investigative
        nature, including, but not limited to, actions, suits or proceedings in which
        Indemnitee may be or may have been involved as a party or otherwise, by reason
        of the fact that Indemnitee is or was a director, officer, employee or agent
        of
        the Company, or is or was serving, at the request of the Company, as a director,
        officer, employee or agent or fiduciary of any other entity, including, but
        not
        limited to, another corporation, partnership, joint venture or trust, or
        by
        reason of anything done or not done by Indemnitee in any such capacity, whether
        or not Indemnitee is serving in such capacity at the time any liability or
        expense is incurred for which indemnification or reimbursement can be provided
        under this Agreement.

      


      (f) "Voting
        Securities" means any securities of the Company which vote generally in the
        election of directors.

      


      19. Other
        Provisions.

      


      (a) This
        Agreement shall be interpreted and enforced in accordance with the laws of
        Delaware.

      


      (b) This
        Agreement may be executed in one or more counterparts, each of which shall
        for
        all purposes be deemed to be an original but all of which together shall
        constitute one and the same Agreement. Only one such counterpart signed by
        the
        party against whom enforceability is sought needs to be produced as evidence
        of
        the existence of this Agreement.

      


      (c) This
        agreement shall not be deemed an employment contract between the Company
        and any
        Indemnitee who is an officer of the Company, and, if Indemnitee is an officer
        of
        the Company, Indemnitee specifically acknowledges that Indemnitee may be
        discharged at any time for any reason, with or without cause, and with or
        without severance compensation, except as may be otherwise provided in a
        separate written contract between Indemnitee and the Company.

      


      (d) Upon
        a
        payment to Indemnitee under this Agreement, the Company shall be subrogated
        to
        the extent of such payment to all of the rights of Indemnitee to recover
        against
        any person for such liability, and Indemnitee shall execute all documents
        and
        instruments required and shall take such other actions as may be necessary
        to
        secure such rights, including the execution of such documents as may be
        necessary for the Company to bring suit to enforce such rights. 

      (e) No
        supplement, modification or amendment of this Agreement shall be binding
        unless
        executed in writing by both parties hereto. No waiver of any of the provisions
        of this Agreement shall be deemed or shall constitute a waiver of any other
        provisions hereof (whether or not similar) nor shall such waiver constitute
        a
        continuing waiver.

      


      


      SIGNATURE
        PAGE TO FOLLOW


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      


       

      IN
        WITNESS WHEREOF, the parties hereto have executed this Agreement on and as
        of
        the day and year first above written.

      


      


      EXPRESS
        SCRIPTS, INC.

      


      


      


      By:___________________
              

      Name:_________________
              

      Title:__________________
              

      


      


      INDEMNITEE

      


      


      


      _______________________  [Name]
        


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      EXHIBIT
        1

      


      UNDERTAKING
        TO REPAY INDEMNIFICATION EXPENSES

      


      I
        ___________________________________________________, agree to reimburse the
        Company for all expenses paid to me by the Company for my defense in any
        civil
        or criminal action, suit, or proceeding, in the event, and to the extent
        that it
        shall ultimately be determined that I am not entitled to be indemnified by
        the
        Company for such expenses. 

      


      


      Signature______________________

      Typed
        Name___________________

      Office________________________

      


      


      __________________
        ) ss:

      


      Before
        me
        ______________________, on this day personally appeared ___________________,
        known to me to be the person whose name is subscribed to the foregoing
        instrument, and who, after being duly sworn, stated that the contents of
        said
        instrument is to the best of his/her knowledge and belief true and correct
        and
        who acknowledged that he/she executed the same for the purpose and consideration
        therein expressed.

      


      GIVEN
        under my hand and official seal at ________, this _______ day of ___________,
        200__. 

      


      ______________________________

      Notary
        Public

      


      My
        commission expires: