EX-4.3






Exhibit 4.3





 




SECOND SUPPLEMENTAL INDENTURE




Dated as of June 9, 2009




Supplementing that Certain




INDENTURE




Dated as of June 9, 2009




 






Among




EXPRESS SCRIPTS, INC.,




THE GUARANTORS PARTIES HERETO




and




UNION BANK, N.A.,




as Trustee




 






6.250% SENIOR NOTES DUE 2014



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE I


Issuance of Securities

	 
	 	 	 	 
	SECTION 1.1. Issuance of Notes; Principal Amount; Maturity; Title
	 	 	1	 
	SECTION 1.2. Interest
	 	 	2	 
	SECTION 1.3. Relationship with Indenture
	 	 	3	 
	 
	 	 	 	 
	ARTICLE II


Definitions and Other Provisions of General Application

	 
	 	 	 	 
	SECTION 2.1. Definitions
	 	 	3	 
	 
	 	 	 	 
	ARTICLE III


Security Forms

	 
	 	 	 	 
	SECTION 3.1. Form Generally
	 	 	13	 
	SECTION 3.2. Form of Note
	 	 	13	 
	SECTION 3.3. Form of Purchase Notice
	 	 	19	 
	SECTION 3.4. Form of Guarantee
	 	 	20	 
	 
	 	 	 	 
	ARTICLE IV


Remedies

	 
	 	 	 	 
	SECTION 4.1. Events of Default
	 	 	21	 
	SECTION 4.2. Acceleration of Maturity; Rescission and Annulment
	 	 	23	 
	 
	 	 	 	 
	ARTICLE V


Redemption of Securities

	 
	 	 	 	 
	SECTION 5.1. Optional Redemption
	 	 	24	 
	SECTION 5.2. Optional Redemption Procedures
	 	 	24	 
	SECTION 5.3. Special Mandatory Redemption
	 	 	26	 
	SECTION 5.4. Special Mandatory Redemption Procedures
	 	 	27	 
	 
	 	 	 	 
	ARTICLE VI


Particular Covenants

	 
	 	 	 	 
	SECTION 6.1. Liens
	 	 	28	 






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	 	 	Page
	 
	 	 	 	 
	SECTION 6.2. Sale and Lease-Back Transactions
	 	 	30	 
	SECTION 6.3. Right to Require Repurchase Upon a Change of Control Triggering Event
	 	 	30	 
	SECTION 6.4. Additional Guarantors
	 	 	32	 
	 
	 	 	 	 
	ARTICLE VII


Supplemental Indentures

	 
	 	 	 	 
	SECTION 7.1. Supplemental Indentures without Consent of Holders of Notes
	 	 	33	 
	SECTION 7.2. Supplemental Indentures with Consent of Holders of Notes
	 	 	34	 
	 
	 	 	 	 
	ARTICLE VIII


Consolidation, Merger, Conveyance, Transfer or Lease

	 
	 	 	 	 
	SECTION 8.1. Company May Consolidate, Etc. on Certain Terms
	 	 	35	 
	SECTION 8.2. Successor Corporation Substituted
	 	 	36	 
	 
	 	 	 	 
	ARTICLE IX


Guarantors

	 
	 	 	 	 
	SECTION 9.1. Guarantee
	 	 	36	 
	SECTION 9.2. Waiver
	 	 	37	 
	SECTION 9.3. Guarantee of Payment
	 	 	37	 
	SECTION 9.4. No Discharge or Diminishment of Guarantee
	 	 	38	 
	SECTION 9.5. Defenses of Company Waived
	 	 	38	 
	SECTION 9.6. Continued Effectiveness
	 	 	38	 
	SECTION 9.7. Subrogation
	 	 	38	 
	SECTION 9.8. Information
	 	 	39	 
	SECTION 9.9. Subordination
	 	 	39	 
	SECTION 9.10. Release of Guarantor
	 	 	39	 
	SECTION 9.11. Limitation of Guarantor’s Liability
	 	 	40	 
	SECTION 9.12. Contribution from Other Guarantors
	 	 	41	 
	SECTION 9.13. No Obligation to Take Action Against the Company
	 	 	41	 
	SECTION 9.14. Execution and Delivery of the Guarantee
	 	 	41	 
	SECTION 9.15. Successor Guarantor
	 	 	42	 
	 
	 	 	 	 
	ARTICLE X


Discharge of Obligations Under the Second Supplemental Indenture, the Indenture and

the Notes; Defeasance

	 
	 	 	 	 
	SECTION 10.1. Termination of the Obligations of the Company
	 	 	42	 
	SECTION 10.2. Repayment to Company
	 	 	43	 
	SECTION 10.3. Amendment to Section 1302; Survival of Provisions of Second Supplemental
Indenture upon Defeasance
	 	 	43	 






 ii




 









 





          This Second Supplemental Indenture, dated as of June 9, 2009 (the “Second Supplemental
Indenture”), among Express Scripts, Inc., a corporation duly 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 Union Bank, N.A., a national
banking association, as Trustee hereunder (herein called the “Trustee”), supplements that
certain Indenture, dated as of June 9, 2009, among the Company, the Guarantors and the Trustee (the
“Indenture”).




RECITALS OF THE COMPANY




          A. The Company has duly authorized the execution and delivery of the Indenture to provide for
the issuance from time to time of its unsecured debentures, notes, or other evidences of
indebtedness to be issued in one or more series as provided for in the Indenture.




          B. Each of the Guarantors has duly authorized the execution and delivery of the Indenture and
the Guarantees, the form of which is attached hereto, in order to fully and unconditionally
guarantee the Company’s obligations under the Indenture.




          C. The Indenture provides that the Securities of each series shall be in substantially the
form set forth in the Indenture, or in such other form as may be established by or pursuant to a
Board Resolution 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 such letters, numbers, or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently therewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof.




          D. The Company and the Trustee have agreed that the Company shall issue and deliver, and the
Trustee shall authenticate, Securities denominated “6.250% Senior Notes due 2014” pursuant to the
terms of this Second Supplemental Indenture and substantially in the form set forth in Section 3.2
below, in each case with such appropriate insertions, omissions, substitutions, and other
variations as are required or permitted by the Indenture and this Second Supplemental Indenture,
and with such letters, numbers, or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of such Notes.




ARTICLE I




Issuance of Securities




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




          (1) On June 9, 2009, the Company shall issue and deliver to the Trustee, and the Trustee
shall authenticate, the Initial Notes substantially in the form set forth in




 









 




Section 3.2 below, in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by the Indenture and this Second Supplemental
Indenture, and with such letters, numbers, or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any securities exchange
or Depositary therefor or as may, consistently herewith, be determined by the officers executing
such Notes, as evidenced by their execution of such Notes.




          (2) The Initial Notes to be issued pursuant to this Second Supplemental Indenture shall be
issued in the aggregate principal amount of $1,000,000,000 and shall mature on June 15, 2014 unless
the Notes are redeemed prior to that date as described in Section 5.1 and 5.3. The aggregate
principal amount of Initial Notes Outstanding at any time may not exceed $1,000,000,000, except for
Notes issued, authenticated and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Notes of the Series pursuant to Sections 304, 305, 306, 906 or 1107 of the
Indenture and except for any Notes which, pursuant to Section 303 of the Indenture, are deemed
never to have been authenticated and delivered. The Company may without the consent of the
Holders, issue additional notes hereunder as part of the same series and on the same terms and
conditions (and having the same Guarantors) and with the same CUSIP numbers as the Initial Notes
(“Additional Notes”); provided that if any Additional Notes are issued at a price that causes such
Additional Notes to have “original issue discount” within the meaning of Section 1273 of the United
States Internal Revenue Code of 1986, as amended, and regulations of the United States Department
of Treasury thereunder (the “Code”), such Additional Notes shall not have the same CUSIP
number as the Initial Notes.




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




          (4) Pursuant to the terms hereof and Section 301 of the Indenture, the Company hereby creates
a series of Securities designated as the “6.250% Notes due 2014” of the Company (as amended or
supplemented from time to time, that are issued under this Second Supplemental Indenture, including
both the Initial Notes and the Additional Notes, if any, the “Notes”), which Notes shall be
deemed “Securities” for all purposes under the Indenture.




          SECTION 1.2. Interest. 




          (1) Interest on a Note will accrue at the per annum rate of 6.250% (the “Note Interest
Rate”), from and including the date specified on the face of such Note until the principal
thereof is paid, deemed paid, or made available for payment and, in each case, will be paid on the
basis of a 360-day year comprised of twelve 30-day months.




          (2) The Company shall pay interest on the Notes semi-annually in arrears on June 15 and
December 15 of each year (each, an “Interest Payment Date”), commencing December 15, 2009.




2









 








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




          (4) Amounts due on the Maturity Date or earlier Redemption Date of the Notes will be payable
at the corporate trust office of the Trustee at 551 Madison Avenue, 11th Floor, New York, NY 10022.
The Company may make payment of interest on an Interest Payment Date in respect of Notes in
certificated form by check mailed to the address of the Person entitled to the payment as it
appears in the Security Register or by transfer to an account maintained by the payee with a bank
located in the United States. The Company shall make payments of principal, premium, if any, and
interest in respect of Notes in book-entry form to DTC in immediately available funds, while
disbursement of such payments to owners of beneficial interests in Notes in book-entry form will be
made in accordance with the procedures of DTC and its participants in effect from time to time.




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




          (6) If any Interest Payment Date, Stated 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 Stated Maturity Date or earlier Redemption Date, as
the case may be, to such next succeeding Business Day.




          SECTION 1.3. Relationship with Indenture. 




          The terms and provisions contained in the Indenture will constitute, and are hereby expressly
made, a part of this Second Supplemental Indenture. However, to the extent any provision of the
Indenture conflicts with the express provisions of this Second Supplemental Indenture, the
provisions of this Second Supplemental Indenture will govern and be controlling.




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 Second Supplemental Indenture otherwise requires) for all purposes of this
Second Supplemental Indenture and of any indenture supplemental hereto have the respective meanings
specified in this Section 2.1. All other terms used in this Second Supplemental Indenture that are
defined in the Indenture or the Trust Indenture Act, either directly or by reference therein
(except as herein otherwise




3









 




expressly provided or unless the context of this Second Supplemental Indenture otherwise
requires), have the respective meanings assigned to such terms in the Indenture or the Trust
Indenture Act, as the case may be, as in force at the date of this Second Supplemental Indenture as
originally executed; provided that any term that is defined in both the Indenture and this Second
Supplemental Indenture shall have the meaning assigned to such term in this Second Supplemental
Indenture.




          “2012 Notes Supplemental Indenture” means the First Supplemental Indenture, dated as
of June 9, 2009, among the Company, the Guarantors and the Trustee related to the 2012 Notes.




          “2012 Notes” means the 5.250% Senior Notes due 2012 as amended or supplemented from
time to time, that are issued under the 2012 Notes Supplemental Indenture.




          “2019 Notes Supplemental Indenture” means the Third Supplemental Indenture, dated as
of June 9, 2009, among the Company, the Guarantors and the Trustee related to the 2019 Notes.




          “2019 Notes” means the 7.250% Senior Notes due 2019 as amended or supplemented from
time to time, that are issued under the 2019 Notes Supplemental Indenture.




          “Acquisition” means the acquisition of the Pharmacy Benefit Management Business of
WellPoint, Inc., including all of the shares and equity interest of the Target Companies by the
Company as contemplated by the Acquisition Agreement.




          “Acquisition Agreement” means the Stock and Interest Purchase Agreement between the
Company and WellPoint, Inc., dated April 9, 2009.




          “Additional Notes” has the meaning specified in Section 1.1(2).




          “Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.




          “Applicable Procedures” means, with respect to any transfer or transaction involving a
Global Security or beneficial interest therein, the rules and procedures of DTC, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in effect from time
to time.




          “Applied Amounts” means an amount (which may be conclusively determined by the Board
of Directors) equal to the greater of (i) capitalized rent with respect to the applicable machinery
and/or equipment and (ii) the fair value of the




4









 




applicable machinery and/or equipment, that is applied within 180 days of the applicable
transaction or transactions to repayment of the Notes or to the repayment of any Indebtedness
which, in accordance with GAAP, is classified as long-term debt and that is on parity with the
Notes.




          “Below Investment Grade Rating Event” means the Notes are not rated, or are rated
below an Investment Grade Rating by each of the Rating Agencies on any date during the period
commencing 60 days prior to the public notice of an arrangement that could result in a Change of
Control until the end of the 60-day period following public notice of the occurrence of the Change
of Control (which 60-day period shall be extended so long as the rating of the Notes is under
publicly announced consideration for possible downgrade by either of the Rating Agencies); provided
that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction
in, or termination of, any rating shall not be deemed to have occurred in respect to a particular
Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes
of a Change of Control Triggering Event) if the Rating Agency or Rating Agencies ceasing to rate
the Notes or making the reduction in rating to which this definition would otherwise apply do not
announce or publicly confirm or inform the Trustee in writing at its request that the termination
or reduction was the result, in whole or in part, of any event or circumstance comprised of or
arising as a result of, or in respect of, the applicable Change of Control (whether or not the
applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating
Event).




          “Beneficial Owner” shall mean any Person who is considered a beneficial owner of a
security for purposes of Rule 13d-3 promulgated of the Exchange Act.




          “Bridge Loan” means the proposed bridge financing to be used to finance the
Acquisition incurred on or prior to the date of the Acquisition.




          “Capital Stock” of any Person means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of such Person and all warrants or options
to acquire such capital stock.




          “Change of Control Offer” has the meaning specified in Section 6.3(1).




          “Change of Control Payment” has the meaning specified in Section 6.3(1).




          “Change of Control Payment Date” has the meaning specified in Section 6.3(2)(iii).




          “Change of Control Triggering Event” means the occurrence of both a Change of Control
and a Below Investment Grade Rating Event.




          “Change of Control” means the occurrence of any of the following: (1) the direct or
indirect sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or substantially all of the
properties and assets of the Company and its Subsidiaries taken as a whole to any Person or Group
other than the Company or one of its Subsidiaries; (2) the approval




5









 




by the holders of the Company’s Common Stock of any plan or proposal for the liquidation or
dissolution of the Company (whether or not otherwise in compliance with the provisions of this
Second Supplemental Indenture and the Indenture); (3) the consummation of any transaction
(including any merger or consolidation) the result of which is that any Person or Group becomes the
Beneficial Owner directly or indirectly, of more than 50% of the then outstanding number of shares
of the Company’s Voting Stock; (4) the Company consolidates with or merges with or into any Person,
or any Person consolidates with, or mergers with or into, the Company, pursuant to a transaction in
which any of the outstanding Voting Stock of the Company or such other Person is converted into or
exchanged for cash, securities or other property (except when Voting Stock of the Company is
converted into, or exchanged for, at least a majority of the Voting Stock of the surviving Person
immediately after giving effect to the transaction); or (5) the first day on which a majority of
the members of the Company’s Board of Directors are not Continuing Directors.




          “Clearstream” means Clearstream Banking, S.A.




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




          “Common Stock” shall mean shares of the Company’s Common Stock, $0.01 par value per
share, as they exist on the date of this Second Supplemental Indenture or any other shares of
Capital Stock of the Company into which the Common Stock shall be reclassified or changed.




          “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 Notes being redeemed 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 such Notes.




          “Comparable Treasury Price” means with respect to any Redemption Date: (i) the average
of three 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
four Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations
for the Redemption Date so obtained.




          “Consolidated Net Worth” means, at any date, the sum of all amounts which would be
included under stockholders’ equity on a consolidated balance sheet of the Company and its
Subsidiaries determined in accordance with GAAP on such date or, in the event such date is not a
fiscal quarter end, as of the immediately preceding fiscal quarter end.




          “Continuing Directors” means, as of any date of determination, any member of the
Company’s Board of Directors who (1) was a member of the Board of Directors on the date of the
issuance of the Initial Notes; or (2) was nominated for




6









 




election or elected to the Board of Directors with the approval of at least a majority of the
Continuing Directors who were members of the Board of Directors at the time of such nomination or
election (either by a specific vote or by approval of the Company’s proxy statement in which such
member was named as a nominee for election as a director, without objection to such nomination).




          “Covenant Defeasance” has the meaning set forth in the Indenture except that the
covenants included in such definition shall include Articles VI, VII, VIII and IX of this Second
Supplemental Indenture and Article Fifteen of the Indenture.




          “Default” means any event that is, or after notice or passage of time, or both, would
be, an Event of Default.




          “Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction
located in the United States of America, or any state thereof or the District of Columbia.




          “DTC” means The Depository Trust Company, a New York corporation.




          “Effective Date” means the closing date of the Acquisition.




          “Environmental Laws” means any and all current or future legally-binding statutes,
ordinances, orders, rules, regulations, judgments, permits, licenses, authorizations, plans,
directives, consent orders or consent decrees of or from any federal, state or local governmental
authority, agency or court, or any other binding requirements of governmental authorities relating
to (i) the protection of the environment, (ii) any activity, event or occurrence involving
hazardous materials, or (iii) occupational safety and health, industrial hygiene, land use or, as
relating to the environment, the protection of human, plant or animal health or welfare, in any
manner applicable to the Company or any of its Subsidiaries or any of their respective properties
or facilities.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.




          “Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.




          “Event of Default” has the meaning specified in Section 4.1.




          “Existing Credit Facility” means that certain Credit Agreement dated as of October 14,
2005 among the Company and the lenders and agents from time to time party thereto, as amended,
restated, supplemented, replaced, refinanced or otherwise modified from time to time.




          “Foreign Subsidiary” means any Subsidiary other than a Domestic Subsidiary.




7









 








          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, as in effect on the date of this Second Supplemental
Indenture.




          “Group” means any group of related Persons for purposes of Section 13(d) of the
Exchange Act.




          “Guarantee” has the meaning specified in Section 9.1.




          “Guarantor” means (1) certain of the Company’s Wholly-Owned Subsidiaries, named on the
signature pages hereto, (2) upon the closing of the Acquisition, the Target Companies and (3) in
the future, certain Subsidiaries that become Guarantors pursuant to Section 6.4, but in each case
excluding Persons who cease to be obligated under the Guarantee in accordance with the Second
Supplemental Indenture.




          “Hazardous Materials” means (i) any chemical, material or substance defined as or
included in any environmental law in the definition of “hazardous substances,” “hazardous wastes,”
“hazardous materials,” “extremely hazardous waste,” “acutely hazardous waste,” “radioactive waste,”
“biohazardous waste,” “pollutant,” “toxic pollutant,” “contaminant,” “restricted hazardous waste,”
“infectious waste,” “toxic substances,” or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the indoor or outdoor
environment (including harmful properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, “TCLP toxicity” or “EP toxicity” or words of
similar import under any applicable Environmental Laws); (ii) any oil, petroleum, petroleum
fraction or petroleum derived substance; (iii) any drilling fluids, produced waters and other
wastes associated with the exploration, development or production of crude oil, natural gas or
geothermal resources; (iv) any flammable substances or explosives; (v) any radioactive materials;
(vi) any friable asbestos-containing materials; (vii) urea formaldehyde foam insulation; (viii)
electrical equipment which contains any oil or dielectric fluid containing polychlorinated
biphenyls; (ix) pesticide; and (x) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority pursuant to Environmental Laws.




          “Indebtedness” means, with respect to any Person, at a particular time, all items of
such Person which constitute, without duplication, (a) indebtedness for borrowed money (including
capital leases) or the deferred purchase price of Property (other than accounts payable, deferred
compensation, customer advances, earn-outs, agreements providing for the holdback of up to 10% of
the purchase price relating to an acquisition and accrued expenses incurred in the ordinary course
of business), (b) indebtedness evidenced by notes, bonds, debentures or similar instruments, (c)
obligations with respect to any conditional sale or other title retention agreement (excluding
operating leases), (d) indebtedness arising under acceptance facilities and the amount available to
be drawn under all letters of credit issued for the account of such Person and, without
duplication,




8









 




all drafts drawn thereunder to the extent such Person shall not have reimbursed the issuer in
respect of the issuer’s payment of such drafts, (e) all liabilities secured by any Lien (other than
carriers’, warehousemen’s, mechanics’, repairmen’s or other like non-consensual Liens arising in
the ordinary course of business) on any Property owned by such Person even though such Person shall
not have assumed or otherwise become liable for the payment thereof; provided that in the event
such Person shall not have assumed or otherwise become liable for the payment thereof, the amount
of such liabilities shall be deemed to be the lesser of (i) the fair market value of the assets of
such Person subject to such Lien and (ii) the amount of the liability secured by such Lien, (f)
that portion of any obligation of such Person, as lessee, which in accordance with GAAP is required
to be capitalized on the balance sheet of such Person, (g) Securitized Indebtedness, and (h) all
guarantees by such Person of any of the foregoing; provided, however, that, notwithstanding
anything to the contrary contained herein, for purposes of this definition, “Indebtedness” shall
not include any intercompany indebtedness between or among the Company and any of its Subsidiaries.




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




          “Initial Notes” means Notes in an aggregate principal amount of up to $1,000,000,000
initially issued under this Second Supplemental Indenture in accordance with Section 1.1(2).




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




          “Investment Grade Rating” means a rating of Baa3 (or better) by Moody’s (or its
equivalent under any successor rating category of Moody’s) and a rating of BBB- (or better) by S&P
(or its equivalent under any successor rating category of S&P), respectively, and the equivalent
investment grade credit rating from any replacement Rating Agency or Rating Agencies selected by
the Company under the circumstances permitting the Company to select a replacement agency and in
the manner for selecting a replacement agency, in each case as set forth in the definition of
“Rating Agency.”




          “Liens” means any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention agreement, any
lease in the nature thereof, and any agreement to give any security interest) and any option, trust
or other preferential arrangement having the practical effect of any of the foregoing.




          “Margin Stock” means any “margin stock”, as said term is defined in Regulation U of
the Board of Governors of the Federal Reserve System of the United States of America (or any
successor), as the same may be amended or supplemented from time to time.




          “Maturity Date” means June 15, 2014.




          “Moody’s” shall mean Moody’s Investors Service, Inc., a subsidiary of Moody’s
Corporation, and its successors.




9









 








          “NextRx, Inc.” means NextRx, Inc., a Delaware corporation.




          “NextRx LLC” means NextRx, LLC, an Ohio limited liability company.




          “NextRx Services, Inc.” means NextRx Services, Inc., a New York corporation.




          “NextRx Sub” means each of NextRx Sub I, NextRx Sub II and NextRx Sub III




          “NextRx Sub I” means NextRx Sub I, LLC, a Delaware limited liability company.




          “NextRx Sub II” means NextRx Sub II, LLC, a Delaware limited liability company.




          “NextRx Sub III” means NextRx Sub III, LLC, a Delaware limited liability company.




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




          “Notes” has the meaning specified in Section 1.1(4).




          “Notice of Default” means a written notice of the kind specified in Section 4.1(4).




          “Obligations” has the meaning specified in Section 9.1.




          “Permitted Sale Lease-Back Transactions” means sales or transfers by the Company or
any Subsidiary of any real property, improvements, fixtures, machinery and/or equipment with the
intention of taking back a lease thereof; provided, however, that “Permitted Sale-Leaseback
Transactions” shall not include such transactions involving machinery and/or equipment (excluding
any lease for a temporary period of not more than thirty-six months with the intent that the use of
the subject machinery and/or equipment will be discontinued at or before the expiration of such
period) relating to facilities (a) in full operation for more than 180 days as of the date hereof
and (b) that are material to the business of the Company and its Subsidiaries taken as a whole, to
the extent that the sum of the aggregate sale price of such machinery and/or equipment from time to
time involved in such transactions (giving effect to payment in full under any such transaction and
excluding the Applied Amounts plus the amount of obligations and Indebtedness from time to time
secured by Liens permitted under Section 6.1(21) herein, exceeds 15% of the Company’s Consolidated
Net Worth.




          “Person” includes any individual, corporation, partnership, limited partnership,
general partnership, limited liability company, limited liability partnership, business trust,
association, joint stock company, joint venture, trust, trust company, bank, association, land
trusts, business trusts or other organizations, whether or not legal




10









 




entities, incorporated or unincorporated organization or government or any agency or political
subdivision thereof.




          “Property” means, with respect to any Person, all types of real, personal or mixed
property and all types of tangible or intangible property owned or leased by such Person.




          “Purchase Notice” means a notice delivered by a Holder in accordance with Section 6.3
in the form set forth in Section 3.3.




          “Rating Agency” or “Rating Agencies” means each of Moody’s and S&P; provided
that if any of Moody’s or S&P ceases to provide rating services to issuers or investors, the
Company may appoint another “nationally recognized statistical rating organization” within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act as a replacement for such Rating Agency
that is reasonably acceptable to the Trustee.




          “Redemption Date,” when used with respect to any Note to be redeemed, means the date
fixed for such redemption by or pursuant to this Second Supplemental Indenture.




          “Redemption Price,” when used with respect to any Note to be redeemed, means the price
at which it is to be redeemed pursuant to this Second Supplemental Indenture.




          “Reference Treasury Dealer” means each of Citigroup Global Markets Inc., Credit Suisse
Securities (USA) LLC, and J. P. Morgan Securities Inc. (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.




          “Registrar” means the Security Registrar for the Notes, which shall initially be Union
Bank, N.A., or any successor entity thereof, subject to replacement as set forth in the Indenture.




          “Regular Record Date” for interest payable in respect of any Note 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).




          “Restricted Subsidiary” means any Subsidiary of the Company that is not an
Unrestricted Subsidiary.




11









 








          “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc., and its successors.




          “Securitized Indebtedness” means, with respect to any Person as of any date, the
reasonably expected liability of such Person for the repayment of, or otherwise relating to, all
accounts receivable, general intangibles, chattel paper or other financial assets and related
rights and assets sold or otherwise transferred by such Person, or any Subsidiary or Affiliate
thereof, on or prior to such date.




          “Significant Subsidiary” means a Restricted Subsidiary that qualifies as a
“significant subsidiary” under Rule 405 of the Securities Act.




          “Special Mandatory Redemption Date” means the earlier to occur of (1) January 25, 2010
if the Acquisition has not been completed on or prior to January 9, 2010 or (2) the 30th day (or if
such day is not a Business Day, the first Business Day thereafter) following the termination of the
Acquisition Agreement for any reason.




          “Special Mandatory Redemption Notice” has the meaning specified in Section 5.4(1).




          “Special Mandatory Redemption Price” has the meaning specified in Section 5.3.




          “Stated Maturity” when used with respect to the Notes or any installment of principal
thereof or interest, if any, thereon, means the date specified in such Note as the fixed date on
which the principal of the Note or such installment of principal or interest, if any, is due and
payable.




          “Target Companies” means each of NextRx LLC, NextRx and NextRx Services.




          “Treasury Rate” means, with respect to any Redemption Date, the rate per year equal to
the semi-annual 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.




          “Unrestricted Subsidiary” means any Subsidiary of the Company that from time to time
is not a Guarantor or required to be a Guarantor.




          “Voting Stock” means, with respect to any Person as of any date, the Capital Stock of
such Person that is at the time entitled to vote generally in the election of the board of
directors of such Person.




          “Wholly-Owned Subsidiary” when used with respect to any Person means (i) any
corporation, association or other business entity of which 100% of the shares of Capital Stock or
other equity interests is at the time owned or controlled, directly or indirectly, by such Person
or one or more of the other Subsidiaries of such Person (or




12









 




combination thereof) and (ii) any partnership, limited liability company or similar
pass-through entity the sole partners, members or persons, however designated in corresponding
roles, of which are such Person or one or more Subsidiaries of such Person (or any combination
thereof).




ARTICLE III




Security Forms




          SECTION 3.1. Form Generally. 




          (1) The Notes shall be in substantially the form set forth in Section 3.2 of this Article
III, with such appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Second Supplemental Indenture and the Indenture, and may have such
letters, numbers or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules or regulations of any securities exchange or automated
quotation system on which the Notes may be listed or designated for issuance, the Code, or any
applicable securities laws, or as may, consistent herewith, be determined by the officers executing
such Notes (execution thereof to be conclusive evidence of such approval). All Notes shall be in
fully registered form.




          (2) Purchase Notices shall be in substantially the form set forth in Section 3.3.




          (3) Guarantees shall be in substantially the form set forth in Section 3.4.




          (4) The Notes 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 securities exchange upon which the Notes may be listed) on which the Notes may be
quoted or listed, as the case may be, all as determined by the officers executing such Notes, as
evidenced by their execution thereof.




          (5) Upon their original issuance, the Notes shall be issued in the form of one or more Global
Securities in definitive, fully registered form without interest coupons. Each such Global
Security shall be duly executed by the Company, authenticated and delivered by the Trustee and
shall be registered in the name of DTC, as Depositary, or its nominee, and deposited with the
Trustee, as custodian for DTC. Beneficial interests in the Global Securities will be shown on, and
transfers will only be made through, the records maintained by DTC and its participants, including
Clearstream and the Euroclear System.




          SECTION 3.2. Form of Note. 




[FORM OF FACE OF NOTE]




13









 








          [THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:




          THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.].




          [THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY FOR WHICH DTC IS TO BE
THE DEPOSITARY:




          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 IN 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.]




EXPRESS SCRIPTS, INC.




6.250% SENIOR NOTE DUE 2014




			
	 	 	 
	No.                     
	 	Principal Amount (US)$                    
	CUSIP NO.                     	 	 






          Express Scripts, Inc., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the “Company”, which term includes any successor Person under
the Second Supplemental Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of
                     United States Dollars (U.S.$                     ) on June 15,
2014 and to pay interest thereon, from June 9, 2009, 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, 2009, at the per
annum rate of 6.250%, or as such rate may be adjusted pursuant to the terms hereof, per annum (the
“Note Interest Rate”), until the principal hereof is paid or made available for payment.




14









 








          The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Second Supplemental Indenture, be paid to the Person in whose name
this Note 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 Second Supplemental 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 Note 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 Notes 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 Notes may be quoted or listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Second Supplemental Indenture. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.




          Payment of principal of (and premium, if any) and interest on this Note will be made at the
corporate trust office of the Trustee at 551 Madison Avenue, 11th Floor, New York, NY 10022, 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. With respect to Global Securities, the Company
will make such payments by wire transfer of immediately available funds to DTC, or its nominee, as
registered owner of the Global Securities. With respect to certificated Notes, the Company will
make such payments by wire transfer of immediately available funds to a United States Dollar
account maintained in St Louis, Missouri or New York, New York to each Holder of an aggregate
principal amount of Notes in excess of U.S. $5,000,000 that has furnished wire instructions in
writing to the Trustee no later than 15 days prior to the relevant payment date. If a Holder of a
certificated Note (i) does not furnish such wire instructions as provided in the preceding sentence
or (ii) holds $5,000,000 or less aggregate principal amount of Notes, the Company will make such
payments by mailing a check to such Holder’s registered address.




          Reference is hereby made to the further provisions of this Note 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 Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.




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




15









 








	 	 	 	 	 	 	 
	 	 	EXPRESS SCRIPTS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






	 	 	 	 	 
	Attest:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 





CERTIFICATE OF AUTHENTICATION



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




Dated:




UNION BANK, N.A.,

as Trustee




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






[FORM OF REVERSE OF NOTE]




          1. Indenture. This Note is one of a duly authorized issue of securities of the Company
designated as its “6.250% Senior Notes due 2014” (herein called the “Notes”), issued under
a Second Supplemental Indenture, dated as of June 9, 2009, to an indenture, dated as of June 9,
2009 (as it may be amended or supplemented from time to time in accordance with the terms thereof,
the “Indenture” and herein with the Second Supplemental Indenture, collectively, the
“Indenture”), between the Company, the Guarantors and Union Bank, N.A., 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
Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. The
aggregate principal amount of Initial Notes Outstanding at any time may not exceed $1,000,000,000
in aggregate principal amount, except for, or in lieu of, other Notes of the Series pursuant to
Sections 304, 305, 306, 906 or 1107 of the Indenture and except for any Notes which, pursuant to
Section 303 of the Indenture, are deemed never to have been authenticated and delivered. The
Second Supplemental Indenture pursuant to which this Note is issued provides that Additional Notes
may be issued thereunder, if certain conditions are met.




16









 








          All terms used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture. In the event of a conflict or inconsistency between this Note
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 Notes 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 Notes
being redeemed, plus accrued and unpaid interest on the Notes to the Redemption Date; or (ii) the
sum of the present values of the remaining scheduled payments of principal of and interest on the
Notes 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 50 basis points, plus, unpaid interest on the Notes
to be redeemed, accrued to the Redemption Date.




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




          4. Special Mandatory Redemption. If for any reason (i) the Acquisition is not consummated on
or prior to January 9, 2010 or (ii) the Acquisition Agreement is terminated at any time prior
thereto, then the Company will redeem all the Notes on the Special Mandatory Redemption Date at a
redemption price equal to 101% of the aggregate principal amount of the Notes plus accrued and
unpaid interest from the date of initial issuance to but excluding the Special Mandatory Redemption
Date (subject to the right of Holders on the relevant Regular Record Date to receive interest due
on the relevant Interest Payment Date).




          5. Change of Control Triggering Event. In the event of a Change of Control Triggering Event,
the Holders may require the Company to purchase for cash all or a portion of their Notes at a
purchase price equal to 101% of the aggregate principal amount of the Notes, plus accrued and
unpaid interest, if any, pursuant to the provisions of Section 6.3 of the Second Supplemental
Indenture.




          6. Global Security. If this Note is a Global Security, then, in the event of a deposit or
withdrawal of an interest in this Note, including an exchange, transfer, redemption, repurchase or
conversion of this Note in part only, the Trustee, as custodian of the Depositary, shall make an
adjustment on its records to reflect such deposit or withdrawal in accordance with the Applicable
Procedures.




          7. Defaults and Remedies. If an Event of Default shall occur and be continuing, the
principal of all the Notes, together with any unpaid premium and accrued interest to the date of
declaration, may be declared due and payable in the manner and with the effect provided in the
Second Supplemental Indenture. Upon payment (i) of the amount of principal so declared due and
payable, together with any unpaid premium and accrued interest to the date of declaration, and (ii)
of interest on any overdue principal




17









 




and, to the extent permitted by applicable law, overdue interest, all of the Company’s
obligations in respect of the payment of the principal of and interest on the Notes shall
terminate.




          As provided in and subject to the provisions of the Indenture, the Holder of this Note 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 Notes
shall have made written request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee. The foregoing shall not apply to any suit instituted by the Holder of this
Note for the enforcement of any payment of principal or premium hereof or interest hereon, on or
after the respective due dates expressed herein.




          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 Notes 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 Notes. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Outstanding Notes, on behalf of the
Holders of all the Notes, 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 Note shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note 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 Note or such other Note. Certain modifications or amendments to the Indenture require the
consent of the Holder of each Outstanding Note affected.




          No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair (without the consent of the Holder hereof) the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any and interest on this Note at
the times, places and rate, and in the coin or currency, herein prescribed.




          9. Registration and Transfer. As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable on the Security Register
upon surrender of this Note for registration of transfer at such office or agency of the Company as
may be designated by it for such purpose in St. Louis, Missouri, or at such other offices or
agencies as the Company may designate, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees by the Registrar. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for a like aggregate principal amount




18









 




of Notes of any authorized denominations as requested by the Holder surrendering the same upon
surrender of the Note or Notes to be exchanged, at such office or agency of the Company. The
Trustee upon such surrender by the Holder will issue the new Notes in the requested denominations.
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 payable in
connection therewith.




          Prior to due presentment of this Note for registration of transfer, the Company, the Trustee,
any Paying Agent and any agent of the Company, the Trustee or any Paying Agent may treat the Person
in whose name such Note is registered as the owner thereof for all purposes, whether or not such
Note be overdue, and neither the Company, the Trustee nor any Paying Agent or other such agent
shall be affected by notice to the contrary.




          10. Guarantee. Payment of this Note 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.




          11. Governing Law. THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.




ABBREVIATIONS




          The following abbreviations, when used in the inscription of the face of this Note, 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.




          SECTION 3.3. Form of Purchase Notice. 




PURCHASE NOTICE




          (1) Pursuant to Section 6.3 of the Second Supplemental Indenture, the undersigned hereby
elects to have this Note repurchased by the Company.




          (2) The undersigned hereby directs the Trustee or the Company to pay it or
                     an amount in cash equal to 101% of the aggregate principal amount to be




19









 




repurchased (as set forth below), plus interest accrued to, but excluding, the Change of
Control Payment Date, as applicable, as provided in the Second Supplemental Indenture.




	 	 	 
	Dated:

	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 

Signature(s)

	 	 
	 
	 	 
	Signature(s) must be guaranteed by an
Eligible Guarantor Institution with
membership in an approved signature
guarantee program pursuant to
Rule 17Ad-15 under the Securities
Exchange Act of 1934.
	 	 
	 
	 	 
	 

Signature Guaranteed

	 	 
	 
	 	 
	Principal amount to be repurchased (at least
U.S.$2,000 or an integral multiple of $1,000
in excess thereof):                         
	 	 
	 
	 	 
	Remaining aggregate principal amount
following such repurchase (not less than
U.S.$2,000):
	 	 
	 
	 	 
	 


	 	 





NOTICE: The signature to the foregoing election must correspond to the name as written upon the
face of this Note in every particular, without alteration or any change whatsoever.




          SECTION 3.4. Form of Guarantee.




          The form of Guarantee shall be set forth on the Notes substantially as follows:




          For value received, each of the Guarantors (which term includes any successor Person under the
Second Supplemental Indenture) has jointly and severally and fully and unconditionally guaranteed,
to the extent set forth in the Second Supplemental Indenture to the Indenture, among the Company,
the Guarantors and the Trustee and subject to the provisions in the Second Supplemental Indenture,
(a) the due and punctual payment in full when due of the principal of, premium, if any, and
interest on the Notes and all other amounts due and payable under the Indenture, Second
Supplemental Indenture and the Notes by the Company and (b) in case of any extension of time of




20









 




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 Notes and to the Trustee pursuant to the Guarantee and the Second
Supplemental Indenture are expressly set forth in Article IX of the Second Supplemental Indenture
and reference is hereby made to the Second Supplemental Indenture for the precise terms of the
Guarantee, including provisions for the release thereof. Each Holder of a Note, 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:
	 	 	]	
	 

	 	 	 	 	 	 





ARTICLE IV




Remedies




          SECTION 4.1. Events of Default. 




          Section 501 of the Indenture shall not be applicable to the Notes.




          “Event of Default,” wherever used herein with respect to the Notes, means any one of
the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):





     (1) default in the payment of any interest upon any Note when it becomes due and
payable, and continuance of such default for a period of 30 calendar days;




     (2) default in the payment of the principal of, or premium, if any, on, any Note at
its Maturity or when otherwise due;




     (3) default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness (or the payment of
which is guaranteed by any Restricted Subsidiary), if that default is caused by a failure
to pay principal at its Stated Maturity after giving effect to any applicable grace period,
or results in the acceleration of such Indebtedness prior to its stated maturity and, in
each case, the principal amount of any such Indebtedness, together with the principal
amount of any other Indebtedness under which there has been a payment default after stated
maturity or the maturity of which has been so accelerated, aggregates $100,000,000 or more;



21









 






     (4) default in the performance, or breach, of any covenant, agreement or warranty of
the Company in this Second Supplemental Indenture or the Indenture as supplemented or
amended and continuance of such default for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Outstanding Notes a
written notice specifying such default and requiring it to be remedied and stating that
such notice is a “Notice of Default” hereunder;




     (5) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or any of its Guarantors of an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any of its Guarantors a
bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any of the
Guarantors under any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or any
of the Guarantors or of any substantial part of the property of either, or ordering the
winding up or liquidation of its affairs;




     (6) the commencement by the Company or any of the Guarantors of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by either to the entry of a decree or order for relief in respect
of the Company or any of the Guarantors in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against either, or
the filing by either of a petition or answer or consent seeking reorganization or similar
relief under any applicable Federal or State law, or the consent by either to the filing of
such petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or any
of the Guarantors or of any substantial part of the property of either, or the making by
either of a general assignment for the benefit of creditors, or the admission by either in
writing of its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any of the Guarantors in furtherance of any such action;




     (7) a Guarantee ceases to be in full force and effect or is declared to be null and
void and unenforceable or the Guarantee is found to be invalid or a Guarantor denies its
liability under its Guarantee (other than by reason of release of the Guarantor in
accordance with the terms hereof); or




     (8) the Company fails to timely deliver a required Special Mandatory Redemption
Notice pursuant to Section 5.4 of this Second Supplemental Indenture.



22









 





          SECTION 4.2. Acceleration of Maturity; Rescission and Annulment.




          Section 502 of the Indenture shall not be applicable to the Notes.




          (1) If an Event of Default occurs and continues (other than an Event of Default specified in
Sections 4.1(5) or 4.1(6)), then in each such case the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Notes may require the Company to repay immediately the
principal of, and any unpaid premium if any, and interest on, all the Notes. The holders of at
least a majority in principal amount of the Outstanding Notes may rescind and annul that
acceleration if all Events of Default with respect to the Notes, other than the nonpayment of
accelerated principal, have been cured or waived as provided in the Indenture. An Event of Default
arising pursuant to Sections 4.1(5) or 4.1(6) shall cause the principal of, and any unpaid premium
and interest on, all Notes to become immediately due and payable without any declaration or other
act by the Trustee, the Holders of the Notes or any other party.




          (2) Other than its duties in the case of a default, the Trustee is not obligated to exercise
any of its rights or powers under this Second Supplemental Indenture or the Indenture at the
request or direction of any Holder of the Notes, unless the Holders offer reasonable indemnity to
the Trustee. If the Holders offer reasonable indemnity to the Trustee, then the Holders of at
least a majority in principal amount of the Outstanding Notes will have the right, subject to some
limitations, to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the Trustee with respect to
the Notes.




          No Holder of any Note shall have any right to institute any proceeding with respect to this
Second Supplemental Indenture or the Indenture or for any remedy under this Second Supplemental
Indenture or the Indenture unless:





     (i) the Holder has previously given to the Trustee written notice of a continuing
Event of Default with respect to the Notes;




     (ii) the Holders of at least 25% in principal amount of the Outstanding Notes have
made a written request, and offered to the Trustee indemnity satisfactory to the Trustee to
institute a proceeding as Trustee;




     (iii) the Trustee has failed to institute the requested proceeding within 60 calendar
days after receipt of such notice; and




     (iv) the Trustee has not received from the Holders of at least a majority in
principal amount of the Outstanding Notes a direction inconsistent with the request during
that 60-day period.



          (3) The Holder of any Note will have the absolute and unconditional right to receive payment
of the principal of, and premium, if any, and interest on, that Note as expressed therein, and to
institute suit for the enforcement of any such payment.




23









 








          (4) The Company is required to furnish to the Trustee annually within 120 days after the end
of its fiscal year a statement as to the absence of any Event of Default under this Second
Supplemental Indenture. Within 30 days after the occurrence of an Event of Default, the Trustee
shall give notice of such Event of Default or of any event which, after notice or lapse of time or
both, would become an Event of Default, known to it, to the Holders of the Notes, except that, in
the case of a default other than a payment default, the Trustee may withhold notice if the Trustee
determines that withholding notice is in the interest of the Holders.




ARTICLE V




Redemption of Securities




          SECTION 5.1. Optional Redemption. 




          (1) The Company may, at its option, redeem the Notes, 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 Notes to be redeemed, plus accrued and unpaid interest on the Notes
to the Redemption Date; or (ii) the sum of the present values of the remaining scheduled payments
of principal of and interest on the Notes 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 50 basis points, plus,
unpaid interest on the Notes to be redeemed, accrued to the Redemption Date.




          (2) In the case of any optional redemption of the Notes, interest installments whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of such Notes at the
close of business on the relevant Regular Record Date. Notes (or portions thereof) for whose
redemption provision is made in accordance with this Second Supplemental Indenture shall cease to
bear interest from and after the Redemption Date.




          SECTION 5.2. Optional Redemption Procedures. 




          (1) The election of the Company to redeem any Notes shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all the Notes, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be acceptable to the Trustee), notify the Trustee of such Redemption Date and the aggregate
principal amount of the Notes to be redeemed.




          (2) If less than all the Notes are to be redeemed pursuant to Section 5.1, the particular
Notes to be redeemed shall be selected, not more than 90 days prior to the Redemption Date, by the
Trustee from among the Outstanding Notes not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for the Notes or any integral multiple
thereof) of the principal




24









 




amount of the Notes of a denomination larger than the minimum authorized denomination for the
Notes.




          The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Notes selected for partial redemption, the aggregate principal amount
thereof to be redeemed.




          For all purposes of this Second Supplemental Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Notes shall relate, in the case of any Notes redeemed
or to be redeemed only in part, to the portion of the principal amount of such Notes which has been
or is to be redeemed.




          (3) Notice of redemption pursuant to this Section 5.2 shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Notes to be redeemed at such Holder’s address as shown in the Security Register for
the affected Notes. Failure to give notice by mailing in the manner herein provided to the Holder
of any Notes designated for redemption as a whole or in part, or any defect in the notice to any
such Holder, shall not affect the validity of the proceedings for the redemption of any other Notes
or portion thereof.




          All notices of redemption shall state:





     (i) the Redemption Date;




     (ii) the Redemption Price;




     (iii) the aggregate principal amount of the Notes to be redeemed;




     (iv) if less than all of the Outstanding Notes are to be redeemed, the identification
(and, in the case of partial redemption, the portions of the principal amounts) of the
particular Notes to be redeemed;




     (v) that on the Redemption Date the Redemption Price will become due and payable upon
each such Note to be redeemed and that interest thereon will cease to accrue on and after
said date;




     (vi) the place or places where such Notes are to be surrendered for payment of the
Redemption Price;




     (vii) the CUSIP numbers of such Notes, if any (or any other numbers used by the
Depositary to identify such Notes); and




     (viii) if notice of redemption of Notes to be redeemed has been given by the Company
and funds sufficient to pay the Redemption Price (including any accrued and unpaid
interest) of all Notes to be redeemed on the Redemption Date are irrevocably available for
the redemption of the Notes called for redemption on the Redemption Date, that the Notes
called for redemption shall cease to bear



25









 







interest on and after such Redemption Date and that the only remaining right of the
Holders will be to receive payment of the Redemption Price.



          Notice of redemption of Notes to be redeemed shall be given by the Company or, on Company
Request, by the Trustee at the expense of the Company.




          (4) On or before 11:00 a.m., New York time, on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003 of the Indenture) an amount of money
sufficient to pay the Redemption Price of all the Notes which are to be redeemed on that date.




          (5) Notice of redemption having been given as aforesaid, the Notes so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price) such
Notes shall cease to bear interest. Upon surrender of any such Note for redemption in accordance
with said notice, such Note shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Notes registered as such at the close of business on the
relevant Regular Record Dates according to their terms.




          If any Note called for redemption shall not be so paid upon surrender thereof for redemption,
the principal thereof shall, until paid, bear interest from the Redemption Date at the rate borne
by the Note.




          (6) Any Note which is to be redeemed only in part shall be surrendered at an office or agency
in accordance with the notice of redemption (with, if the Company or the Trustee shall so require,
due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or other appropriate person), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such Note, without service
charge, a new Note or Notes of any authorized denominations as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of
the Note so surrendered.




          SECTION 5.3. Special Mandatory Redemption.




          If for any reason (i) the Acquisition is not consummated on or prior to January 9, 2010 or
(ii) the Acquisition Agreement is terminated at any time prior to thereto, then the Company will
redeem all the Notes on the Special Mandatory Redemption Date at a price equal to 101% of the
aggregate principal amount of the Notes, plus accrued and unpaid interest from the date of original
issuance to but excluding the Special Mandatory Redemption Date (the “Special Mandatory
Redemption Price”) (subject to the right of Holders on the relevant Regular Record Date to
receive interest due on the relevant Interest Payment Date).




26









 








          SECTION 5.4. Special Mandatory Redemption Procedures.




          (1) Notice of redemption pursuant to this Section 5.4 (a “Special Mandatory Redemption
Notice”) shall be mailed, with a written copy to the Trustee, by first-class mail, postage
prepaid, mailed within five Business Days after the occurrence of the event triggering redemption
to each Holder of Notes to be redeemed at such Holder’s address as shown in the Security Register.
Failure to give notice by mailing in the manner herein provided to the Holder of any Notes
designated for redemption as a whole or in part, or any defect in the notice to any such Holder,
shall not affect the validity of the proceedings for the redemption of any other Notes or portion
thereof.




          All notices of redemption shall state:





     (i) the Special Mandatory Redemption Date;




     (ii) the Special Mandatory Redemption Price;




     (iii) that on the Special Mandatory Redemption Date the Special Mandatory Redemption
Price will become due and payable upon each such Note to be redeemed;




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




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




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



          (2) Notice of redemption having been given as aforesaid, the Notes so to be redeemed shall,
on the Special Mandatory Redemption Date, become due and payable at the Special Mandatory
Redemption Price therein specified. If funds sufficient to pay the Special Mandatory Redemption
Price (including any accrued and unpaid interest) of all Notes to be redeemed on the Special
Mandatory Redemption Date are deposited with the Trustee or a Paying Agent on or before such
Special Mandatory Redemption Date, the Notes shall cease to bear interest on and after such Special
Mandatory Redemption Date. Upon surrender of any such Note for redemption in accordance with said
notice, such Note shall be paid by the Company at the Special Mandatory Redemption Price; provided,
however, that installments of interest whose Interest Payment Date is on or prior to the Special
Mandatory Redemption Date shall be payable to the Holders of such Notes registered as such at the
close of business on the relevant Regular Record Dates according to their terms.




27









 








ARTICLE VI




Particular Covenants




          SECTION 6.1. Liens.




          The Company will not, and will not permit any of its Restricted Subsidiaries to, create or
assume, except in the Company’s favor or in favor of one or more of its Wholly-Owned Subsidiaries,
any Lien against or on any Property now owned or hereafter acquired by the Company or any
Restricted Subsidiary, or permit any Restricted Subsidiary to do so, unless the Outstanding Notes
are secured equally and ratably with (or prior to) the obligations so secured by such Lien, except
that the foregoing restrictions do not apply to the following types of Liens:





     (1) Liens in connection with workers’ compensation, unemployment insurance or other
social security obligations (which phrase shall not be construed to refer to ERISA or the
minimum funding obligations under Section 412 of the Code);




     (2) Liens to secure the performance of bids, tenders, letters of credit, contracts
(other than contracts for the payment of Indebtedness), leases, statutory obligations,
surety, customs, appeal, performance and payment bonds and other obligations of like
nature, in each such case arising in the ordinary course of business;




     (3) mechanics’, workmen’s, carriers’, warehousemen’s, materialmen’s, landlords’, or
other like Liens arising in the ordinary course of business with respect to obligations
which are not due or that are being contested in good faith and by appropriate action;




     (4) Liens for taxes, assessments, fees or governmental charges or levies that are not
delinquent or which are payable without penalty, or which are being contested in good faith
and by appropriate action, and in respect of which adequate reserves shall have been
established in accordance with GAAP on the books of the Company or any Subsidiary;




     (5) Liens consisting of attachments, judgments or awards against the Company or any
Subsidiary with respect to which an appeal or proceeding for review shall be pending or a
stay of execution shall have been obtained, or which are otherwise being contested in good
faith and by appropriate action, and in respect of which adequate reserves shall have been
established in accordance with GAAP on the books of the Company or any Subsidiary;




     (6) easements, rights of way, restrictions, leases of Property to others, easements
for installations of public utilities, title imperfections and restrictions, zoning
ordinances and other similar encumbrances affecting Property which in the aggregate do not
materially adversely affect the value of such Property or



28









 







materially impair its use for the operations of the business of the Company or any
Subsidiary;




     (7) Liens existing on the date of the Indenture and securing Indebtedness or other
obligations of the Company or any Subsidiary;




     (8) statutory Liens in favor of lessors arising in connection with Property leased to
the Company or any Subsidiary;




     (9) Liens on Margin Stock to the extent that a prohibition on such Liens pursuant to
this Section 6.1 would violate Regulation U of the Board of Governors of the Federal
Reserve System of the United States of America, as the same may be amended or supplemented
from time to time;




     (10) purchase money Liens on Property hereafter acquired by the Company or any
Subsidiary created within 180 days of such acquisition (or in the case of real property,
completion of construction including any improvements or the commencement of operation of
the Property, whichever occurs later) to secure or provide for the payment or financing of
all or any part of the purchase price thereof; provided that the Lien secured thereby shall
attach only to the Property so acquired and related assets (except that individual
financings by one Person (or an Affiliate thereof) may be cross-collateralized to other
financings provided by such Person and its Affiliates that are independently permitted by
this clause (10));




     (11) Liens in respect of Permitted Sale-Leaseback Transactions;




     (12) Liens on the Property of a Person that becomes a Subsidiary after the date
hereof; provided that (i) such Liens existed at the time such Person becomes a Subsidiary
and were not created in anticipation thereof, (ii) any such Lien does not by its terms
cover any Property after the time such Person becomes a Subsidiary that was not covered
immediately prior thereto and (iii) any such Lien does not by its terms secure any
Indebtedness other than Indebtedness existing immediately prior to the time such Person
becomes a Subsidiary; provided that such Indebtedness was not incurred in anticipation of
such Person becoming a Subsidiary;




     (13) Liens on Property and proceeds thereof existing at the time of acquisition
thereof and not created in contemplation thereof;




     (14) Liens (i) of a collection bank arising under Section 4-208 of the Uniform
Commercial Code on the items in the course of collection, and (ii) in favor of a banking
institution arising as a matter of law encumbering deposits (including the right of set
off) and which are within the general parameters customary in the banking industry;




     (15) Liens securing Securitized Indebtedness in an aggregate principal amount not in
excess of $750,000,000 at any one time outstanding upon the granting of such Liens;



29









 






     (16) any extension, renewal, refinancing, substitution or replacement (or successive
extensions, renewals, refinancings, substitutions or replacements), as a whole or in part,
of any of the Liens referred to in paragraphs (7), (10), (12) and (13) of this Section;
provided that such extension, renewal, refinancing substitution or replacement Lien shall
be limited to all or any part of substantially the same property or assets that secured the
Lien extended, renewed, refinanced, substituted or replaced (plus improvements on such
Property) and the liability secured by such Lien at such time is not increased;




     (17) Liens on proceeds of any of the assets permitted to be the subject of any Lien
or assignment permitted by this Section 6.1;




     (18) Liens imposed in respect of Environmental Laws;




     (19) Licenses of patents, trademarks and other intellectual property rights granted
by the Company or any of its Subsidiaries in the ordinary course of business and not
interfering in any material respect with the ordinary conduct of the business of the
Company or such Subsidiary;




     (20) Liens securing obligations (other than obligations representing Indebtedness for
borrowed money) under operating, reciprocal easement or similar agreements entered into in
the ordinary course of business of the Company and its Subsidiaries; and




     (21) other Liens; provided that, without duplication, the aggregate sum of all
obligations and Indebtedness secured by Liens permitted under this clause (21), together
with all Property subject to Permitted Sale-Leaseback Transactions would not exceed 15% of
the Company’s Consolidated Net Worth, measured upon granting of such Liens based on the
Company’s consolidated balance sheet for the end of the then most recent quarter for which
financial statements are available.



          SECTION 6.2. Sale and Lease-Back Transactions. 




          The Company will not, and will not permit any of its Restricted Subsidiaries to engage in sale
and leaseback transactions except for Permitted Sale-Leaseback Transactions.




          SECTION 6.3. Right to Require Repurchase Upon a Change of Control Triggering Event. 




          (1) Upon the occurrence of any Change of Control Triggering Event, each Holder of Notes shall
have the right to require, by delivery to the Company of a Purchase Notice, the Company to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
such Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”)
on the terms set forth in the Notes at a purchase price in cash equal to 101% of the aggregate
principal amount of the Notes repurchased, plus accrued and unpaid interest, if any, on the Notes
repurchased, to the date of purchase





30











 




(subject to the right of Holders on the relevant Regular Record Date to receive interest due
on the relevant Interest Payment Date) (the “Change of Control Payment”).




          (2) Within 30 days following any Change of Control Triggering Event, or at our option, prior
to any Change of Control but after the public announcement of the pending Change of Control, the
Company shall mail a notice to Holders of Notes, with a written copy to the Trustee, which notice
shall govern the terms of the Change of Control Offer. Such notice shall state:





     (i) a description of the transaction or transactions that constitute the Change of
Control Triggering Event;




     (ii) that the Change of Control Offer is being made pursuant to this Section 6.3 and
that all Notes validly tendered will be accepted for payment;




     (iii) the Change of Control Payment and the Change of Control Payment Date,
which date shall be a Business Day that is no earlier than 30 days and no later than 60
days from the date such notice is mailed, other than as may be required by law (the
“Change of Control Payment Date”); and




     (iv) if the notice is mailed prior to the date of the consummation of the Change of
Control, the notice will state that the Change of Control Offer is conditioned on the
Change of Control Triggering Event occurring on or prior to the Change of Control Payment
Date.



          (3) On the Change of Control Payment Date, the Company shall be required, to the extent
lawful, to:





     (i) accept for payment all Notes or portions of Notes properly tendered pursuant to
the Change of Control Offer;




     (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment
in respect of all Notes or portions of Notes properly tendered; and




     (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased and that all conditions precedent provided for in this
Second Supplemental Indenture to the Change of Control Offer and to the repurchase by the
Company of Notes pursuant to the Change of Control Offer have been complied with.


The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control
Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book-entry) to each Holder of Notes properly tendered a new Note equal in principal
amount to any unpurchased portion of any Notes surrendered; provided that each new Note will be in
a principal amount of $2,000 or an integral multiple of $1,000.




31









 





          (4) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of Notes as a result of a Change of Control Triggering
Event. To the extent that the provisions of any securities laws or regulations conflict with this
Section 6.3, the Company will comply with the applicable securities laws and regulations and will
not be deemed to have breached its obligations under this Section 6.3 by virtue of such conflicts.




          (5) Notwithstanding the foregoing, the Company will not be required to make an offer to
repurchase the Notes upon a Change of Control Triggering Event if (i) a third party makes such an
offer in the manner, at the times and otherwise in compliance with the requirements for an offer
made by the Company and such third party purchases all the Notes properly tendered and not
withdrawn under its offer or (ii) the Company has given written notice of a redemption as provided
under Section 5.2 unless the Company has failed to pay the Redemption Price on the Redemption Date.




          SECTION 6.4. Additional Guarantors. 




          (1) Upon the closing of the Acquisition, the Target Companies shall merge into each of NextRx
Sub I, NextRx Sub II and NextRx Sub III and shall become successor guarantors to the NextRx Subs by
executing a supplemental indenture and delivering it to the Trustee. If, after the date of the
Indenture, any Subsidiary of the Company that is not then a Guarantor guarantees, becomes a
borrower or guarantor under, or grants any Lien to secure any obligations pursuant to, the Existing
Credit Facility or the Bridge Loan, any refinancing or replacement thereof or any other
Indebtedness having an aggregate principal amount outstanding in excess of 15% of the Company’s
Consolidated Net Worth as of the end of the Company’s most recent quarter for which financial
statements are available (such Consolidated Net Worth to be measured at the time of the incurrence
of each such guarantee or borrowing or the granting of such Lien), then in any such case such
Subsidiary will become a Guarantor by executing a supplemental indenture and delivering it to the
Trustee promptly (but in any event, within two Business Days of the date on which it guaranteed or
incurred such Indebtedness or granted such Lien, as the case may be).




          (2) Notwithstanding the preceding paragraph, any Guarantee by a Guarantor that was issued
pursuant to this Section 6.4 solely as a result of its guarantee or incurrence of, or granting of a
Lien in respect of, any such Indebtedness shall be automatically and unconditionally released upon
the release or discharge of the guarantee that resulted in the creation of such Subsidiary’s
Guarantee (or upon such Subsidiary ceasing to be a borrower or the release of Liens granted by such
Subsidiary, as the case may be), except a discharge or release as a result of payment under such
guarantee, or of the refinancing or replacement of any such Indebtedness that is guaranteed or
incurred by such Guarantor.




32









 





ARTICLE VII




Supplemental Indentures




          SECTION 7.1. Supplemental Indentures without Consent of Holders of Notes.




          Section 901 of the Indenture shall not be applicable to the Notes.




          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 Indenture, this Second Supplemental Indenture
and the terms of the Notes 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 Indenture, this Second
Supplemental Indenture and the Notes pursuant to the provisions under Article VIII or
Section 9.15;




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




     (3) add any additional Events of Default;




     (4) secure the Notes;




     (5) provide for a successor Trustee with respect to the Notes and add or change any
of the provisions of the Indenture or the Second Supplemental Indenture as shall be
necessary to provide for or facilitate the administration of the trusts thereunder by more
than one Trustee, pursuant to the requirements of Section 611 of the Indenture;




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




     (7) cure any ambiguity, defect or inconsistency;




     (8) modify the legends regarding restrictions on transferability on the Notes, which
modifications may not adversely affect the interests of the Holders of any Notes or owners
of beneficial interests in the Notes; or




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


No amendment to cure any ambiguity, defect or inconsistency in this Second Supplemental Indenture,
the Indenture or the Notes made solely to conform this Second


33









 






Supplemental Indenture, the Indenture or the Notes to the Description of the Notes contained in the
Company’s prospectus supplement dated June 4, 2009, to the extent that such provision in the
Description of the Notes was intended to be a verbatim recitation of a provision of this Second
Supplemental Indenture, the Indenture or the Notes, shall be deemed to adversely affect the
interests of the Holders of any Notes.




          SECTION 7.2. Supplemental Indentures with Consent of Holders of Notes.




          Section 902 of the Indenture shall not be applicable to the Notes.




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





     (1) reduce the amount of Notes whose Holders must consent to an amendment, supplement
or waiver;




     (2) change the Stated Maturity of the principal of, or any installment of interest
on, any Note;




     (3) reduce the principal of, or any premium if any, or rate of interest on, any Note;




     (4) reduce any amount payable upon the redemption of any Note or, except as expressly
provided elsewhere herein, change the time at which any Note may be redeemed pursuant to
Article V;




     (5) change any place of payment where, or the currency in which, any principal of, or
premium, if any, or interest on, any Note is payable;




     (6) impair the right of any Holder of a Note to receive payment of principal of and
interest on such Holder’s Notes 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 Note on or
after the Stated Maturity or Redemption Date;




     (7) reduce the percentage in principal amount of Outstanding Notes the consent of
whose Holders is required for modification or amendment of the Indenture or this Second
Supplemental Indenture for waiver of compliance with certain provisions of the Indenture or
this Second Supplemental Indenture or waiver of certain defaults;




     (8) release any Guarantor from any of its obligations under its Guarantee or this
Second Supplemental Indenture, or the Indenture, other than in accordance with the terms
hereof; or



34









 






     (9) modify any of the above provisions.



          The Holders of at least a majority in aggregate principal amount of the Outstanding Notes may,
on behalf of the Holders of all the Notes, waive any past default under the Indenture or this
Second Supplemental Indenture and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest on, any Notes or in respect of a covenant or
provision that under the Indenture or this Second 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 Notes may, on behalf of the Holders of all Notes
waive compliance with the Company’s covenants described under Sections 6.1 and 6.2 of this Second
Supplemental Indenture. Section 6.3 hereof may not be waived or modified without the written
consent of Holders of at least a majority in principal amount of Notes and Sections 5.3 and 5.4
hereof may not be waived or modified without the written consent of Holders of at least 90% in
principal amount of Notes.




ARTICLE VIII




Consolidation, Merger, Conveyance, Transfer or Lease




          SECTION 8.1. Company May Consolidate, Etc. on Certain Terms.




          Section 801 of the Indenture shall not be applicable to the Notes.




          The Company shall not in a single transaction or a series of related transactions, consolidate
with or merge with or into any other Person, permit any other Person to consolidate with or merge
with and into the Company or convey, transfer or lease all or substantially all of its properties
and assets to any other Person, unless:





     (1) the Company is the surviving entity, or the Person formed by such consolidation
or merger or the Person to which all or substantially all of the properties and assets of
the Company are conveyed, transferred or leased, as the case may be, shall be an entity
organized and existing under the laws of the United States of America, any state thereof or
the District of Columbia and shall expressly assume, by a supplemental indenture executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest on the Outstanding Notes and the
performance and observance of every covenant of this Second Supplemental Indenture and the
Indenture on the part of the Company to be performed or observed;




     (2) immediately after giving effect to any such transaction and treating any
Indebtedness that becomes an obligation of the Company or any Subsidiary of the Company as
a result of such transaction as having been incurred by the Company or any Subsidiary of
the Company at the time of such transaction, there shall not be any Event of Default or
event which, after notice or lapse of time or both, would become an Event of Default;



35









 






     (3) if, as a result of any such transaction, the properties or assets of the Company
would become subject to a Lien which would not be permitted under Section 6.1 of this
Second Supplemental Indenture, the Company or such successor Person, as the case may be,
shall take those steps that are necessary to secure all the Outstanding Notes equally and
ratably with Indebtedness secured by that Lien; and




     (4) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation or transfer and supplemental
indenture, if applicable, comply with this Second Supplemental Indenture and the Indenture
and that all conditions precedent to the consummation of the particular consolidation,
merger, conveyance, transfer or lease under this Second Supplemental Indenture and the
Indenture have been complied with.



          SECTION 8.2. Successor Corporation Substituted.




          Section 802 shall not be applicable to the Notes.




          Upon any consolidation or merger by the Company with or into any other Person or any
conveyance, transfer or lease of all or substantially all of the properties and assets of the
Company to any other Person in accordance with Section 8.1, the successor Person formed by such
consolidation or merger or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company under this Second
Supplemental Indenture and the Indenture with the same effect as if such successor Person has been
named as the Company herein, and thereafter, except in the case of a lease to another Person, the
predecessor Person shall be relieved of all obligations and covenants under the Indenture, this
Second Supplemental Indenture and the Notes (to the extent the Company was the predecessor Person).




ARTICLE IX




Guarantors




          Article 15 of the Indenture shall not be applicable to the Notes.




          SECTION 9.1. Guarantee. 




          (1) For value received, each of the Guarantors hereby jointly and severally and fully and
unconditionally guarantees (each a “Guarantee”), to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Second Supplemental Indenture, the Indenture or the Notes or
the obligations of the Company or any other Guarantor to the Holders or the Trustee hereunder or
thereunder, that: (a) the principal of, premium, if any, and interest on the Notes will be duly and
promptly paid in full when due, whether at Stated Maturity, upon redemption, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if
any, on the Notes and all other obligations of the Company or the Guarantor to the Holders of or




36









 




the Trustee hereunder or thereunder (including fees, expenses or others) (collectively, the
“Obligations”) will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or renewal of any
Obligations (with or without notice to such Guarantor), 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. If the Company shall fail to pay when due, or to perform,
any Obligations, for whatever reason, each Guarantor shall be jointly and severally obligated to
pay in cash, or to perform or cause the performance of, the same promptly. An Event of Default
under this Second Supplemental Indenture or the Notes shall entitle the Holders of the Notes to
accelerate the Obligations of the Guarantor hereunder in the same manner and to the same extent as
the Obligations of the Company.




          (2) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes, this Second Supplemental
Indenture or the Indenture, the absence of any action to enforce the same, any waiver or consent by
any Holder of the Notes with respect to any provisions of this Second Supplemental Indenture, the
Indenture or the Notes, any release of any other Guarantor, the recovery of any judgment against
the Company, any action to enforce the same, whether or not a Guarantee is affixed to any
particular Note, or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor.




          (3) Each Guarantor further agrees that, as between it, on the one hand, and the Holders of
the Notes and the Trustee, on the other hand, (a) the maturity of the Obligations guaranteed hereby
may be accelerated as provided in Article IV of this Second Supplemental Indenture for the purposes
of the Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations, and (b) in the event of any acceleration of such
Obligations as provided in Article IV of this Second Supplemental Indenture, such Obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantor for the
purposes of its Guarantee.




          SECTION 9.2. Waiver.




          To the fullest extent permitted by applicable law, each of the Guarantors waives diligence,
presentment, demand of, payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that the Guarantee will not be discharged except by
complete performance of the Obligations contained in the Notes, this Second Supplemental Indenture
and Indenture.




          SECTION 9.3. Guarantee of Payment.




          Each of the Guarantors further agrees that its Guarantee constitutes a guarantee of payment,
performance and compliance when due and not a guarantee of




37









 




collection, and waives any right to require that any resort be had by the Trustee or any
Holder of the Notes to the security, if any, held for payment of the Obligations.




          SECTION 9.4. No Discharge or Diminishment of Guarantee.




          Subject to Section 9.10 of this Second Supplemental Indenture, the obligations of each of the
Guarantors hereunder shall not be subject to any reduction, limitation, termination, impairment or
for any reason (other than the payment in full in cash of the Obligations), including any claim of
waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each of the Guarantors hereunder shall not be
discharged or impaired or otherwise affected by the failure of the Trustee or any Holder of the
Notes to assert any claim or demand or to enforce any remedy under this Second Supplemental
Indenture, the Indenture or the Notes, any other guarantee or any other agreement, by any waiver or
modification of any provision thereof, by any default, failure or delay, willful or otherwise, in
the performance of the Obligations, or by any other act or omission or delay to do any other act
that may or might in any manner or to any extent vary the risk of any Guarantor or that would
otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the
payment in full in cash of all the Obligations).




          SECTION 9.5. Defenses of Company Waived. 




          To the extent permitted by applicable law, each of the Guarantors waives any defense based on
or arising out of any defense of the Company or any other Guarantor or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation from any cause of the liability of
the Company, other than final payment in full in cash of the Obligations. Each of the Guarantors
waives any defense arising out of any such election even though such election operates to impair or
to extinguish any right of reimbursement or subrogation or other right or remedy of each of the
Guarantors against the Company or any security.




          SECTION 9.6. Continued Effectiveness. 




          Subject to Section 9.10 of this Second Supplemental Indenture, each of the Guarantors further
agrees that its Guarantee hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or interest on any Obligation
is rescinded or must otherwise be restored by the Trustee or any Holder of the Notes upon the
bankruptcy or reorganization of the Company or otherwise.




          SECTION 9.7. Subrogation. 




          In furtherance of the foregoing and not in limitation of any other right of each of the
Guarantors by virtue hereof, upon the failure of the Company to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each of the Guarantors hereby promises to and




38









 




will, upon receipt of written demand by the Trustee or any Holder of the Notes, forthwith pay,
or cause to be paid, to the Holders in cash the amount of such unpaid Obligations, and thereupon
the Holders shall, assign (except to the extent that such assignment would render a Guarantor a
“creditor” of the Company within the meaning of Section 547 of Title 11 of the United States Code
as now in effect or hereafter amended or any comparable provision of any successor statute) the
amount of the Obligations owed to it and paid by such Guarantor pursuant to this Guarantee to such
Guarantor, such assignment to be pro rata to the extent the Obligations in question were discharged
by such Guarantor, or make such other disposition thereof as such Guarantor shall direct (all
without recourse to the Holders, and without any representation or warranty by the Holders). If
(a) a Guarantor shall make payment to the Holders of all or any part of the Obligations and (b) all
the Obligations and all other amounts payable under this Second Supplemental Indenture shall be
paid in full, the Trustee will, at such Guarantor’s request, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the Obligations resulting
from such payment by such Guarantor.




          SECTION 9.8. Information. 




          Each of the Guarantors assumes all responsibility for being and keeping itself informed of the
Company’s financial condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations and the nature, scope and extent of the risks that each of the
Guarantors assumes and incurs hereunder, and agrees that the Trustee and the Holders of the Notes
will have no duty to advise the Guarantors of information known to it or any of them regarding such
circumstances or risks.




          SECTION 9.9. Subordination. 




          Upon payment by any Guarantor of any sums to the Holders, as provided above, all rights of
such Guarantor against the Company, arising as a result thereof by way of right of subrogation or
otherwise, shall in all respects be subordinated and junior in right of payment to the prior
payment in full in cash of all the Obligations to the Trustee; provided, however, that any right of
subrogation that such Guarantor may have pursuant to this Second Supplemental Indenture is subject
to Section 9.7 hereof.




          SECTION 9.10. Release of Guarantor. 




          (1) A Guarantor shall, upon the occurrence of any of the following events, be automatically
and unconditionally released and discharged from all obligations under this Second Supplemental
Indenture and its Guarantee without any action required on the part of the Trustee or any Holder;
provided that such Guarantor would not, immediately after such release and discharge, be required
to become a Guarantor pursuant to Section 6.4 hereof if such Guarantor had incurred its
then-existing guarantees, indebtedness for borrowed money (including capital leases) and Liens at
the time of such release and discharge:




39









 






     (i) upon notice by the Company to the Trustee, at any time such Guarantor is not a
borrower or guarantor under, and has not granted any then-existing Lien to secure any
obligations pursuant to, the Existing Credit Facility as amended, or the Bridge Loan, any
refinancing or replacement thereof (including as a result of any release from such
obligations in connection with being designated an “exempt subsidiary” by the Company (as
defined in the Existing Credit Agreement)) or any other Indebtedness for borrowed money
(including capital leases) having an aggregate principal amount outstanding in excess of
15% of the Company’s Consolidated Net Worth (other than obligations arising under this
Second Supplemental Indenture and the Notes, the 2012 Notes Supplemental Indenture and the
2012 Notes and the 2019 Notes Supplemental Indenture and the 2019 Notes) except where
resulting from a discharge or release as a result of payment under such guarantee;
provided, however, that no Guarantor shall be released under this subsection unless the
Guarantor is substantially concurrently released from its guarantees under the 2012 Notes
Supplemental Indenture and the 2012 Notes and the 2019 Notes Supplemental Indenture and the
2019 Notes, or such guarantees have previously been terminated or released;




     (ii) upon the occurrence of the circumstances described in Section 6.4 hereof, of
which the Company shall promptly notify the Trustee; or




     (iii) upon the sale, transfer or disposition of all or substantially all of the
equity interests or assets of the Guarantor to another Person (other than to the Company,
any of its Subsidiaries or Affiliates).



          (2) A Guarantor shall be automatically and unconditionally released and discharged from all
obligations under this Second Supplemental Indenture and its Guarantee without any action required
on the part of the Trustee or any Holder upon any Covenant Defeasance or Defeasance with respect to
the Notes, subject to reinstatement pursuant to Section 1306 of the Indenture.




          (3) The Trustee shall deliver an appropriate instrument evidencing such release upon receipt
of a request of the Company accompanied by an Officers’ Certificate certifying as to the compliance
with this Section. Any Guarantor not so released will remain liable for the full amount of the
principal of, premium, if any, and interest on the Notes provided in this Second Supplemental
Indenture and its Guarantee.




          SECTION 9.11. Limitation of Guarantor’s Liability.




          (1) Each Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the
intention of all such parties that the Guarantee by such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Title 11 of the United States Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Guarantor. To effectuate the foregoing intention, the Holders and such
Guarantor hereby irrevocably agree that the obligations of such Guarantor under this Second
Supplemental Indenture and its Guarantee shall be limited to the maximum aggregate amount which,
after giving




40









 




effect to all other contingent and fixed liabilities of such Guarantor, and after giving
effect to any collections from or payments made by or on behalf of, any other Guarantor in respect
of the obligations of such Guarantor under its Guarantee or pursuant to its contribution
obligations under this Second Supplemental Indenture, will result in the obligations of such
Guarantor under its Guarantee not constituting such fraudulent transfer or conveyance.




          (2) The Guarantee is expressly limited so that in no event, including the acceleration of the
maturity of the Securities, shall the amount paid or agreed to be paid in respect of interest on
the Securities (or fees or other amounts deemed payment for the use of funds) exceed the maximum
permissible amount under applicable law, as in effect on the date hereof and as subsequently
amended or modified to allow a greater amount of interest (or fees or other amounts deemed payment
for the use of funds) to be paid under the Guarantee. If for any reason the amount in respect of
interest (or fees or other amounts deemed payment for the use of funds) required by the Guarantee
exceeds such maximum permissible amount, the obligation to pay interest under the Guarantee (or
fees or other amounts deemed payment for the use of funds) shall be automatically reduced to such
maximum permissible amount and any amounts collected by any holder of any Security in excess of the
permissible amount shall be automatically applied to reduce the outstanding principal on such
Security.




          SECTION 9.12. Contribution from Other Guarantors.




          Each Guarantor that makes a payment or distribution under its Guarantee shall be entitled to
seek contribution from each other non-paying Guarantor in a pro rata amount based on the net assets
of each Guarantor, determined in accordance with generally accepted accounting principles in effect
in the United States of America as of the date hereof so long as the exercise of such right does
not impair the rights of the Holders under the Guarantee.




          SECTION 9.13. No Obligation to Take Action Against the Company.




          Neither the Trustee, any Holder nor any other Person shall have any obligation to enforce or
exhaust any rights or remedies or take any other steps under any security for the Obligations or
against the Company or any other Person or any Property of the Company or any other Person before
the Trustee, such Holder or such other Person is entitled to demand payment and performance by any
or all Guarantors of their liabilities and obligations under their Guarantee.




          SECTION 9.14. Execution and Delivery of the Guarantee. 




          (1) To further evidence the Guarantee set forth in this Article IX, each Guarantor hereby
agrees that a notation of such Guarantee substantially in the form of Section 3.4 hereof shall be
endorsed on each Note authenticated and delivered by the Trustee and executed by either manual or
facsimile signature of an officer, manager or member, as applicable, of each Guarantor.




41









 





          (2) Each of the Guarantors hereby agrees that its Guarantee set forth in this Article IX
shall remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee.




          (3) If an officer of a Guarantor whose signature is on this Second Supplemental Indenture or
a Guarantee no longer holds that office or is no longer a manager or member, as applicable, at the
time the Trustee authenticates such Guarantee or at any time thereafter, such Guarantor’s Guarantee
of such Note shall be valid nevertheless.




          (4) The delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of any Guarantee set forth in this Second Supplemental Indenture on
behalf of each Guarantor.




          SECTION 9.15. Successor Guarantor. 




          Unless otherwise released and discharged from its obligations in accordance with this Second
Supplemental Indenture, upon any consolidation or merger by any Guarantor with or into any other
Person, the successor Person formed by such consolidation or merger shall sign a supplemental
indenture and guarantee and succeed to, and be substituted for, and may exercise every right and
power of, the Guarantor under this Second Supplemental Indenture and the Indenture with the same
effect as if such successor Person has been named as a Guarantor herein, and thereafter the
predecessor Person shall be relieved of all obligations and covenants under the Indenture, this
Second Supplemental Indenture and the Notes (to the extent the Guarantor was the predecessor
Person).




ARTICLE X




Discharge of Obligations Under the Second Supplemental Indenture,

the Indenture and the Notes; Defeasance




          SECTION 10.1. Termination of the Obligations of the Company.




          The obligations of the Company with respect to the Notes under this Second Supplemental
Indenture, the Indenture and the Notes shall cease to be of further effect or, at the option of the
Company, the Company shall no longer be under any obligation to comply with the covenants described
in Articles VI, VII, VIII and IX of the Second Supplemental Indenture and Article 15 of the
Indenture and the Events of Default relating to those covenants shall no longer apply to the
Company if (a) either (i) all Outstanding Notes (other than Notes replaced pursuant to Section 306
of the Indenture) have been delivered to the Trustee for cancellation or (ii) all Outstanding Notes
have become due and payable on the Maturity Date or pursuant to Article V or Section 6.3, and in
any case the Company irrevocably deposits, prior to the applicable due date, with the Paying Agent
or Trustee (if the Paying Agent is not the Company or any of its Affiliates) cash in money of the
United States that at the time of payment is legal tender for payment of public and private debts,
sufficient to pay all amounts due and owing on




42









 




all Outstanding Notes (other than Notes replaced pursuant to Section 306 of the Indenture) on
the Maturity Date, Redemption Date, Special Mandatory Redemption Date or Change of Control Payment
Date, as the case may be; (b) the Company pays to the Trustee or Paying Agent all other sums
payable hereunder by the Company; (c) no Default or Event of Default with respect to the Notes
shall exist on the date of such deposit; (d) such deposit will not result in a breach or violation
of, or constitute a Default or Event of Default under, this Second Supplemental Indenture or any
other agreement or instrument of which the Company is a party or by which the Company is bound; and
(e) the Company shall have delivered to the Trustee an Officers’ Certificate and Opinion of
Counsel, each stating that all conditions precedent provided for in this Second Supplemental
Indenture relating to the termination of the obligations of the Company hereunder have been
complied with provided, however, that (i) Sections 303, 304, 305, 306, 308, 309, 606, 607, 610,
611, 1002 and 1003 of the Indenture, and (ii) Sections 5.3, 5.4 and 5.5 of the Second Supplemental
Indenture and Articles I and X of the Second Supplemental Indenture and (iii) the rights, powers,
trusts, duties and immunities of the Trustee under the Indenture and the Second Supplemental
Indenture shall survive any discharge of obligations pursuant to this Section 10.1 until such time
as the Notes have been paid in full and there are no Notes Outstanding.




          SECTION 10.2. Repayment to Company. 




          The Trustee and the Paying Agent shall promptly notify the Company of, and pay to the Company
upon the request of the Company, any excess money held by them at any time. The Trustee or the
Paying Agent, as the case may be, shall provide written notice to the Company of any money that has
been held by it and has, for a period of two years, remained unclaimed for the payment of the
principal of, or any accrued and unpaid interest on, the Notes. The Trustee and the Paying Agent
shall pay to the Company upon the written request of the Company any money held by them for the
payment of the principal of, premium, if any, or any accrued and unpaid interest on, the Notes that
remains unclaimed for two years; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, shall (in no event later than five days after the
Company requests repayment pursuant to this Section 10.2), at the expense of the Company, cause to
be published once in a newspaper of general circulation in the City of New York or cause to be
mailed to each Holder, notice stating that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to the money must look to the Company for payment as
general creditors, subject to applicable law, and all liability of the Trustee and the Paying Agent
with respect to such money and payment shall, subject to applicable law, cease.




          SECTION 10.3. Amendment to Section 1302; Survival of Provisions of Second Supplemental
Indenture upon Defeasance. 




          Section 1302 of the Indenture is hereby amended to delete all of the words following the colon
and the words “hereunder:” in the second sentence of Section 1302 and to replace them with the
following words “(i) Sections 303, 304, 305, 306, 308, 309,




43









 




606, 607, 610, 611, 1002 and 1003 of the Indenture and (ii) the rights, powers, trusts, duties
and immunities of the Trustee under the Indenture.” In addition, upon Defeasance in accordance
Section 1302 of the Indenture, (i) Sections 5.3, 5.4 and 5.5 of the Second Supplemental Indenture
and Articles I and X of the Second Supplemental Indenture and (ii) the rights, powers, trusts,
duties and immunities of the Trustee under the Second Supplemental Indenture shall survive such
Defeasance.




[Signature page to follow.]




44









 





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



	 	 	 	 	 
	 	EXPRESS SCRIPTS, INC.

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


AIRPORT HOLDINGS, LLC

ESI REALTY, LLC



By: Express Scripts, Inc., as sole Member




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






 









 




BYFIELD DRUG, INC.

CHESAPEAKE INFUSION, INC.

CURASCRIPT, INC.

CURASCRIPT PBM SERVICES, INC.

ESI MAIL PHARMACY SERVICE, INC.

EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.

EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.

FRECO, INC.

FREEDOM SERVICE COMPANY, LLC

HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC.

IBIOLOGIC, INC.

LYNNFIELD DRUG, INC.

MATRIX GPO LLC

MOORESVILLE ON-SITE PHARMACY, LLC

NEXTRX SUB I, LLC

NEXTRX SUB II, LLC

NEXTRX SUB III, LLC

PRIORITYHEALTHCARE.COM, INC.

PRIORITY HEALTHCARE CORPORATION

PRIORITY HEALTHCARE CORPORATION WEST

PRIORITY HEALTHCARE PHARMACY, INC.

SINUSPHARMACY, INC.

SPECIALTY INFUSION PHARMACY, INC.

SPECTRACARE, INC.

SPECTRACARE HEALTH CARE VENTURES, INC.

SPECTRACARE INFUSION PHARMACY, INC.




	 	 	 	 	 
	 	  By:  	/s/
Patrick McNamee
 	 
	 	 	Name:  	Patrick McNamee 	 
	 	 	Title:  	President 	 
	 





 









 







CARE CONTINUUM, INC.

HEALTHBRIDGE, INC.

LYNNFIELD COMPOUNDING CENTER, INC.

PHOENIX MARKETING GROUP, LLC

PRIORITY HEALTHCARE DISTRIBUTION, INC.




	 	 	 	 	 
	 	  By:  	/s/
Michael Holmes
 	 
	 	 	Name:  	Michael Holmes 	 
	 	 	Title:  	President 	 
	 


CFI OF NEW JERSEY, INC.

DIVERSIFIED PHARMACEUTICAL SERVICES, INC.

ESI CLAIMS, INC.

ESI ENTERPRISES, LLC

EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC

EXPRESS SCRIPTS SALES DEVELOPMENT CO.

EXPRESS SCRIPTS SENIOR CARE, INC.

EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC.

IVTX, INC.

NATIONAL PRESCRIPTION ADMINISTRATORS, INC.

VALUE HEALTH, INC.

YOURPHARMACY.COM, INC.




	 	 	 	 	 
	 	  By:  	/s/
George Paz
 	 
	 	 	Name:  	George Paz 	 
	 	 	Title:  	President 	 
	 


CONNECTYOURCARE, LLC

CONNECTYOURCARE COMPANY, LLC




	 	 	 	 	 
	 	  By:  	/s/
Marc Palmer
 	 
	 	 	Name:  	Marc Palmer 	 
	 	 	Title:  	President 	 
	 





 









 







ESI PARTNERSHIP



By: Express Scripts, Inc., as Partner




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


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




	 	 	 	 	 
	 	  By:  	/s/
Tom Rocheford
 	 
	 	 	Name:  	Tom Rocheford 	 
	 	 	Title:  	President 	 
	 


ESI-GP HOLDINGS, INC.

ESI RESOURCES, INC.




	 	 	 	 	 
	 	  By:  	/s/
Tom Rocheford
 	 
	 	 	Name:  	Tom Rocheford 	 
	 	 	Title:  	President 	 
	 


EXPRESS SCRIPTS CANADA HOLDING, CO.




	 	 	 	 	 
	 	  By:  	/s/
Michael Biskey
 	 
	 	 	Name:  	Michael Biskey 	 
	 	 	Title:  	President 	 
	 


MSC — MEDICAL SERVICES COMPANY

SPEEDY RE-EMPLOYMENT, LLC




	 	 	 	 	 
	 	  By:  	/s/
Edward Ignaczak
 	 
	 	 	Name:  	Edward Ignaczak 	 
	 	 	Title:  	President 	 
	 





 









 







SPECTRACARE OF INDIANA



By: Spectracare, Inc., as Partner




	 	 	 	 	 
	 	  By:  	/s/
Patrick McNamee
 	 
	 	 	Name:  	Patrick McNamee 	 
	 	 	Title:  	President 	 
	 


By: Care Continuum, Inc., as Partner




	 	 	 	 	 
	 	  By:  	/s/
Michael Holmes
 	 
	 	 	Name:  	Michael Holmes 	 
	 	 	Title:  	President 	 
	 





 









 








	 	 	 	 	 
	 	UNION BANK, N.A.,

As Trustee

 	 
	 	By:  	/s/
Patricia Phillips-Coward	 
	 	 	Name:  	Patricia Phillips-Coward	 
	 	 	Title:  	Vice President