EXPRESS SCRIPTS, INC.
as Issuer
THE GUARANTORS as defined herein
as Guarantors
and
BANKERS TRUST COMPANY
as Trustee
$250,000,000
9 5/8% SENIOR NOTES DUE 2009
--------------------------------
SUPPLEMENTAL INDENTURE
Dated as of October 6, 1999
to
INDENTURE
Dated as of June 16, 1999
--------------------------------
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of October
6, 1999, among Express Scripts, Inc. (the "Company"), the Guarantors as named in
the Indenture (as defined herein), and Bankers Trust Company as trustee (the
"Trustee").
WHEREAS, the Company and the Guarantors have heretofore executed and
delivered to the Trustee an Indenture dated as of June 16, 1999, among the
Company, the Guarantors and the Trustee (the "Indenture"), relating to
$250,000,000 aggregate principal amount at maturity of the Company's 9 5/8%
Senior Notes due 2009 (the "Notes");
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company and the
Guarantors have requested to amend the Indenture and have received the requisite
consents of the Holders of the outstanding Notes to the amendments made hereby;
WHEREAS, the Company and each of the Guarantors are authorized to enter
into this Supplemental Indenture by resolution of the Board of Directors of the
Company or such Guarantor;
WHEREAS, the Company has delivered an Officers' Certificate and Opinion of
Counsel to the Trustee pursuant to Section 9.06 of the Indenture; and
WHEREAS, all other actions necessary to make this Supplemental Indenture a
legal, valid and binding obligation of the parties hereto in accordance with its
terms and the terms of the Indenture have been performed;
NOW, THEREFORE, in consideration of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Company, the Guarantors and the Trustee hereby mutually
covenant and agree for the equal and proportionate benefit of all Holders of the
Notes as follows:
ARTICLE I
AMENDMENTS
Upon execution and effectiveness of this Supplemental Indenture, the terms
of the Notes and the Indenture shall be amended as follows:
SECTION I.1. Section 1.01 of the Indenture shall be amended as follows:
(a) by deleting clause (viii) of the definition of "Asset Disposition" and
substituting in lieu thereof the following:
"(viii) a disposition of any Capital Stock or assets of XxxxXxxxxxxx.xxx,
Inc. or any corporation, partnership or limited liability company which is the
successor to the business conducted or contemplated to be conducted as of the
Issue Date by XxxxXxxxxxxx.xxx, Inc.;" and
(b) by deleting clause (vi) of the definition of "Permitted Investments"
and substituting in lieu thereof the following:
"(vi) Investments made by the Company or its Restricted Subsidiaries as a
result of consideration received in connection with an Asset Disposition made in
compliance with, or a disposition of assets exempt from, Section 4.15;".
ARTICLE II
MISCELLANEOUS
SECTION II.1. For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(A) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture and (B) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
any particular Article, Section or other subdivision.
SECTION II.2. Upon the effectiveness of this Supplement Indenture, the
Indenture shall be modified in accordance herewith, but except as expressly
amended hereby, the Indenture is in all respects ratified and confirmed and all
the terms, conditions and provisions thereof shall remain in full force and
effect.
SECTION II.3. Upon effectiveness, this Supplemental Indenture shall form a
part of the Indenture and the Supplemental Indenture and the Indenture shall be
read, taken and construed as one and the same instrument for all purposes, and
every holder of Notes heretofore or hereafter authenticated and delivered under
the Indenture shall be bound hereby.
SECTION II.4. This Supplemental Indenture shall become effective
immediately prior to the contribution of certain specified assets of
XxxxXxxxxxxx.xxx, Inc. ("YPC"), a wholly-owned subsidiary of the Company, to
XxxxxxXx.xxx, Inc. ("PlanetRx") in exchange for common stock of PlanetRx
pursuant to the agreement between PlanetRx, YPC and the Company (the
"Transaction"). If the Transaction does not occur, then this Supplemental
Indenture will not become effective and will be void.
SECTION II.5. The Trustee accepts the amendment to the Indenture effected
by this Supplemental Indenture and agrees to execute the trust created by the
Indenture, as hereby amended, but only upon the terms and conditions set forth
in the Indenture, as hereby amended, including the terms and provisions defining
and limiting the liabilities and responsibilities of the Trustee, which terms
and provisions shall in like manner define and limit the Trustee's liabilities
in the performance of the trust created by the Indenture, as hereby amended.
Without limiting the generality of the foregoing, the Trustee has no
responsibility for the correctness of the recitals of fact herein contained
which shall be taken as the statements of the Company and makes no
representations as to the validity or sufficiency of this Supplemental
Indenture, except as to the due and valid execution hereof by the Trustee, and
shall incur no liability or responsibility in respect of the validity thereof.
The Trustee's execution of this Supplemental Indenture should not be construed
to be an approval or disapproval of the advisability of the amendments to the
Indenture provided herein.
SECTION II.6. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY IN SAID STATE.
SECTION II.7. This Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and all of such counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
EXPRESS SCRIPTS, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title:President and Chief Executive
Officer
DIVERSIFIED PHARMACEUTICAL
SERVICES, INC., ESI/VRX
SALES DEVELOPMENT CO.,
EXPRESS SCRIPTS VISION
CORPORATION, IVTX, INC.,
MANAGED PRESCRIPTION
NETWORK, INC., MHI, INC.,
VALUE HEALTH, INC.,
VALUERX, INC., VALUERX
PHARMACY PROGRAM, INC.,
XXXXXXXXXXXX.XXX, INC.,
HEALTH CARE SERVICES, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title:President
BANKERS TRUST COMPANY, as Trustee
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title:Assistant Vice President
