1 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

IN RE: 

MEDCO/EXPRESS SCRIPTS MERGER 

LITIGATION 

 Civil Action No. 11-4211 (DMC) (MF) 

ORDER GRANTING PRELIMINARY 

APPROVAL OF SETTLEMENT 

Plaintiffs and defendants Howard W. Barker, Jr., John L. Cassis, Michael Goldstein, 

Charles M. Lillis, Myrtle Potter, William L. Roper, David B. Snow, Jr., David D. Stevens, 

Blenda J. Wilson, (collectively, the “Individual Defendants”), Medco Health Solutions, Inc. 

(“Medco” or the “Company”), Express Scripts, Inc. (“Express Scripts”) Aristotle Holding, Inc., 

Aristotle Merger Sub, Inc. and Plato Merger Sub Inc. (with the Individual Defendants, the 

“Defendants” and together with Plaintiffs, the “Parties”) having applied pursuant to the Federal 

Rules of Civil Procedure 23(a), 23(b)(1) and (b)(2) for an order approving the proposed 

settlement of the above-captioned consolidated class action (the “Action”) and determining 

certain matters in connection with the proposed settlement of the Action (the “Settlement”) and 

for dismissal of the Action with prejudice, in accordance with the terms and conditions of the 

Stipulation and Agreement of Compromise, Settlement and Release entered into by the Parties 

and dated November 23, 2011 (the “Stipulation”); 

NOW, upon consent of the Parties, after review and consideration of the Stipulation filed 

with the United States District Court for the District of New Jersey (the “Court”) and the 

Exhibits annexed thereto, and after due deliberation, 

 IT IS THIS day of November, 2011 

ORDERED as follows: 

Case 2:11-cv-04211-DMC -MF Document 94-12 Filed 11/25/11 Page 1 of 7 PageID: 3863
2

1. The terms of the Stipulation are preliminarily approved, subject to further 

consideration thereof prior to or at the Settlement Hearing provided for below.1

2. For settlement purposes only, and pending the Fairness Hearing (defined below), 

the Action is temporarily certified as a non-opt out class pursuant to Federal Rules of Civil 

Procedure 23(a), 23(b)(1) and (b)(2), defined as all record holders and beneficial owners of 

common stock of Medco Health Solutions, Inc. (“Medco”) together with their successors, heirs 

and assigns, during the period commencing on July 21, 2011 and ending at the effective time of 

the closing of the Proposed Transaction, or the withdrawal or termination of the Proposed 

Transaction, as the case may be, excluding Defendants (the “Class”). 

3. A hearing (the “Fairness Hearing”) shall be held on _______________, 20__ at 

_________ _.m., before the undersigned at the United States Post Office and Courthouse 

Building, Newark, NJ 07101 to: 

a. determine whether certification of the Settlement Class herein should be 

made final; 

b. determine whether the Settlement should be approved by the Court as fair, 

reasonable, adequate and in the best interests of the Class; 

c. determine whether an Order and Final Judgment should be entered 

pursuant to the Stipulation; 

d. consider Plaintiffs’ Counsel’s application for an award of attorneys’ fees 

and expenses; and 

e. rule on such other matters as the Court may deem appropriate. 

 

1

 Unless otherwise provided herein, the terms defined in the Settlement Agreement shall 

have the same meaning in this Order. 

Case 2:11-cv-04211-DMC -MF Document 94-12 Filed 11/25/11 Page 2 of 7 PageID: 3864
3

4. The Court reserves the right to adjourn the Fairness Hearing or any adjournment 

thereof, including the consideration of the application for attorneys’ fees, without further notice 

of any kind other than oral announcement at the Fairness Hearing or any adjournment thereof. 

5. The Court reserves the right to approve the Settlement at or after the Settlement 

Hearing with such modification(s) as may be consented to by the Parties to the Stipulation and 

without further notice to the Class. 

6. Within fifteen (15) business days after the date of this Order, Medco or its 

successor entity shall cause a notice of the Fairness Hearing in substantially the form annexed as 

Exhibit D to the Stipulation (the “Notice”) to be mailed to all shareholders of record that are 

members of the Class at their last known address appearing in the stock transfer records 

maintained by or on behalf of Medco. All shareholders of record in the Class who were not also 

the beneficial owners of the shares of Medco common stock held by them of record shall be 

requested to forward the Notice to such beneficial owners of those shares. Medco or its 

successor entity shall make additional copies of the Notice available to any record holder who, 

prior to the Fairness Hearing, requests the same for distribution to beneficial owners. 

7. The form and method of notice herein is the best notice practicable and 

constitutes due and sufficient notice of the Fairness Hearing to all persons entitled to receive 

such a notice. Counsel for Medco or its successor entity shall at least ten (10) business days 

prior to the Fairness Hearing described herein, file with the Court an appropriate affidavit with 

respect to the preparation and mailing of the Notice. 

8. All proceedings in the Action, other than such proceedings as may be necessary to 

carry out the terms and conditions of the Settlement, are hereby stayed and suspended until 

further order of the Court. Pending final determination of whether the Settlement should be 

Case 2:11-cv-04211-DMC -MF Document 94-12 Filed 11/25/11 Page 3 of 7 PageID: 3865
4

approved, Plaintiffs, and all members of the Class, are barred and enjoined from commencing or 

prosecuting any action asserting either directly, representatively, derivatively or in any other 

capacity, any Released Claims as defined in the Stipulation. 

9. Any member of the Class who objects to the Settlement, the Order and Final 

Judgment to be entered in the Action, and/or Plaintiffs’ Lead Counsel’s application for attorneys’ 

fees, or who otherwise wishes to be heard, may appear in person or by such member’s attorney at 

the Fairness Hearing and present evidence or argument that may be proper and relevant; 

provided, however, that, except for good cause shown, no person shall be heard and no papers, 

briefs, pleadings or other documents submitted by any person shall be considered by the Court 

unless not later than thirty (30) days prior to the Fairness Hearing such person files with the 

Court and serves upon counsel listed below: (a) a written notice of intention to appear which is 

signed, includes the person’s name, address and telephone number, provides documentation 

evidencing the person’s membership in the Class, and states whether the person is represented by 

counsel and intends to appear at the Settlement Hearing;; (b) a statement of such person’s 

objections to any matters before the Court; and (c) the grounds for such objections and the 

reasons that such person desires to appear and be heard as well as all documents or writings such 

person desires the Court to consider. Such filings shall be served upon the following counsel: 

Christine S. Azar 

LABATON SUCHAROW LLP 

300 Delaware Avenue 

Suite 1225 

Wilmington, DE 19801 

Tel: (302) 573-2530 

Fax: (302) 573-2529 

Plaintiffs’ Co-Lead Counsel in the 

Delaware Action 

Joel Friedlander 

Edward P. Welch 

SKADDEN, ARPS, SLATE, 

 MEAGHER & FLOM LLP 

One Rodney Square 

P.O. Box 636 

Wilmington, Delaware 19899-0636 

Tel.: (302) 651-3000 

Fax: (302) 651-3001 

Andrew Muscato 

SKADDEN, ARPS, SLATE, 

 MEAGHER & FLOM LLP 

Case 2:11-cv-04211-DMC -MF Document 94-12 Filed 11/25/11 Page 4 of 7 PageID: 3866
5

BOUCHARD MARGULES & 

FRIEDLANDER, P.C. 

222 Delaware Avenue, Suite 400 

Wilmington, Delaware 19801 

Tel: (302) 573-3500 

Fax: (302) 573-3501 

Plaintiffs’ Liaison Counsel in the 

Delaware Action 

James E. Cecchi 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO 

5 Becker Farm Road 

Roseland, New Jersey 07068 

Tel: (973) 994-1700 

Fax: (973) 994-1744 

Jay W. Eisenhofer 

GRANT & EISENHOFER P.A. 

1201 N. Market Street 

Wilmington, Delaware 19801 

Tel: (302) 622-7000 

Fax: (302) 622-7100 

Mark Lebovitch 

BERNSTEIN LITOWITZ BERGER 

 & GROSSMANN LLP 

1285 Avenue of the Americas 

New York, NY 10019 

Tel: (212) 554-1400 

Fax: (212) 554-1444 

Attorneys for Plaintiffs in the District 

Court Action 

4 Times Square 

New York, NY 10036 

Tel: (212) 735-3000 

Fax: (212) 735-2000 

Joseph P. LaSala 

MCELROY, DEUTSCH, 

MULVANEY & CARPENTER, LLP 

1300 Mount Kemble Avenue 

P.O. Box 2075 

Morristown, NJ 07962-2075 

Tel.: (973) 993-8100 

Fax: (973) 425-0161 

Attorneys for Defendants Express 

Scripts, Inc., Aristotle Holding, Inc., 

Aristotle Merger Sub, Inc. and Plato 

Merger Sub, Inc. 

Jon E. Abramczyk 

MORRIS, NICHOLS, ARSHT & 

TUNNELL, LLP 

1201 N. Market Street 

P.O. Box 1347 

Wilmington, Delaware 19899-1347 

Tel: (302) 658-9200 

Fax: (302) 658-3989 

Kevin H. Marino 

MARINO, TORTORELLA & 

BOYLE, P.C. 

437 Southern Boulevard 

Chatham, NJ 07928-1488 

Tel: (973) 824-9300 

Fax: (973) 824-8425 

Attorneys for Defendants Medco Health 

Solutions, Inc., David B. Snow, Jr., 

Michael Goldstein, Howard W. Barker, 

Jr., John L. Cassis, Charles M. Lillis, 

Myrtle Potter, William L. Roper, David 

D. Stevens, and Blenda J. Wilson

and filed with the Clerk of the Court. 

Case 2:11-cv-04211-DMC -MF Document 94-12 Filed 11/25/11 Page 5 of 7 PageID: 3867
6

10. Unless the Court otherwise directs, no person shall be entitled to object to the 

approval of the Settlement, any judgment entered thereon, the adequacy of the representation of 

the Class by Plaintiffs and Lead Counsel, any award of attorneys’ fees, or otherwise be heard, 

except by serving and filing a written objection and supporting papers and documents as 

described in paragraph 9. Any person who fails to object in the manner described above shall be 

deemed to have waived the right to object (including any right of appeal) and shall be forever 

barred from raising such objection in this or any other action or proceeding. 

11. Plaintiffs shall file any papers in support of their application for attorney’s fees no 

later than forty-five (45) days prior to the Fairness hearing. 

12. The parties shall file any papers in support of final approval of the Settlement no 

later than fourteen (14) days prior to the Fairness Hearing. 

13. If the Settlement, including any amendment made in accordance with the 

Stipulation, is not approved by the Court or shall not become effective for any reason 

whatsoever, the Settlement (including any modification thereof made with the consent of the 

Parties as provided for in the Stipulation), and temporary Class certification herein and any 

actions taken or to be taken in connection therewith (including this Order and any judgment 

entered herein) shall be terminated and shall become void and of no further force and effect, 

except for the obligation of Medco or its successor entity to pay for any expenses incurred in 

connection with the Notice and administration provided for by this Scheduling Order. In that 

event, neither the Stipulation, nor any provision contained in the Stipulation, nor any action 

undertaken pursuant thereto, nor the negotiation thereof by any party shall be deemed an 

admission or received as evidence in this or any other action or proceeding. 

Case 2:11-cv-04211-DMC -MF Document 94-12 Filed 11/25/11 Page 6 of 7 PageID: 3868
7

 

DENNIS M. CAVANAUGH, U.S.D.J. 

Case 2:11-cv-04211-DMC -MF Document 94-12 Filed 11/25/11 Page 7 of 7 PageID: 3869