EXHIBIT 4.4
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
SECOND SUPPLEMENTAL INDENTURE
Dated as of July 19, 2000
to
INDENTURE
Dated as of June 16, 1999
SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental Indenture"), dated
as of July 19, 2000, 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"), and a Supplemental
Indenture dated as of October 6, 1999, among the Company, the Guarantors and the
Trustee (the "First Supplemental 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, Section 9.01 of the Indenture provides that without the consent of
any Holder, the Company and the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee, together, may amend or supplement
the Indenture to, among other things, add Guarantees with respect to the Notes
or make any other change that does not adversely affect in any material respect
the rights of any Holders thereunder;
WHEREAS, pursuant to Section 4.16 of the Indenture, if the Company or any
of its domestic Restricted Subsidiaries transfers any property to any domestic
Restricted Subsidiary that is not the Company or a Guarantor, then such
transferee or acquired or other Restricted Subsidiary shall become a Guarantor
for all purposes of the Indenture;
WHEREAS, Section 4.16 of the Indenture requires each new Restricted
Subsidiary to execute and deliver to the Trustee a supplemental indenture to
guarantee all of the Company's obligations under the Notes and the Indenture;
WHEREAS, pursuant to Section 4.03 of the Indenture, the Company shall not
be required to preserve the existence of any Restricted Subsidiary if the Board
of Directors of the Company determines that the preservation of the corporate
existence thereof is no longer desirable in the conduct of the business of the
Company and its Restricted Subsidiaries;
WHEREAS, the applicable Boards of Directors of the Company and the
Restricted Subsidiaries have determined that the preservation of the corporate
existence of certain Restricted Subsidiaries is no longer desirable in the
conduct of the Company's business;
WHEREAS, the Company has effected certain dissolutions of Restricted
Subsidiaries pursuant to Section 4.03 of the Indenture;
WHEREAS, the Company desires to effect certain amendments pursuant to
Section 4.03, Section 4.16 and Section 9.01 of the Indenture;
WHEREAS, the Company and each of the Guarantors are authorized to enter
into this Second Supplemental Indenture by resolution of the Board of Directors
of the Company or such Guarantor; .........WHEREAS, the Company has delivered to
the Trustee an Opinion of Counsel and an Officers' Certificate stating that such
amendment or supplement is permitted or authorized under the terms of the
Indenture;
WHEREAS, all other actions necessary to make this Second 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 ONE
AMENDMENTS
SECTION 1.01......Addition of Guarantors.
(a) Each of the following entities hereby agrees to become a Guarantor
under the Indenture and, together with each other Guarantor, hereby
unconditionally and irrevocably guarantees, jointly and severally, to each
Holder and to the Trustee and its successors and assigns (i) the full and
punctual payment of principal of and interest on the Notes when due, whether at
maturity, by acceleration, by redemption, by required repurchase or otherwise,
and all other monetary obligations of the Company and the Guarantors under the
Indenture and the Notes and (ii) the full and punctual performance within
applicable grace periods of all other obligations of the Company and the
Guarantors under the Indenture and the Notes (all the foregoing being
hereinafter collectively called the "Guaranteed Obligations"):
Name Jurisdiction of Incorporation
ESI Claims, Inc. Delaware
ESI Mail Pharmacy Service, Inc. Delaware
Express Scripts Specialty
Distribution Services, Inc. Delaware
Express Scripts Utilization
Management Co. Delaware
(b) Each Guarantor further agrees (i) to be bound by all applicable
provisions of the Indenture and (ii) that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
such Guarantor and that such Guarantor will remain bound under this Article I
notwithstanding any extension or renewal of any Guaranteed Obligation.
SECTION 1.02......Dissolution of Guarantors.
Each of the following entities has been dissolved or merged into another
Restricted Subsidiary pursuant to Section 4.03 of the Indenture. All references
in the Indenture to each or any "Guarantor" shall from this day forth not refer
to the following entities:
Name Jurisdiction of Incorporation
Healthcare Services, Inc. Pennsylvania
Managed Prescription Network, Inc. Delaware
MHI, Inc. Nevada
ValueRx, Inc. Delaware
ValueRx Pharmacy Program, Inc. Michigan
SECTION 1.03......References in the Indenture.
By reason of the addition of certain Guarantors pursuant to Section 1.01
hereof, the dissolution of certain Guarantors pursuant to Section 1.02 hereof,
and the continuation, as Guarantors, of the other Guarantors under the
Indenture, all references in the Indenture to the "Guarantors" are hereby deemed
to refer to the following entities, and all references in the Indenture to each
or any "Guarantor" are hereby deemed to refer to each of such entities:
Name Jurisdiction of Incorporation
Diversified Pharmaceutical Services, Inc. Minnesota
ESI Claims, Inc. Delaware
ESI Mail Pharmacy Service, Inc. Delaware
ESI/VRX Sales Development Co. Delaware
Express Scripts Specialty Distribution Services, Inc. Delaware
Express Scripts Utilization Management Co. Delaware
Express Scripts Vision Corp. Delaware
IVTx, Inc. Delaware
Value Health, Inc. Delaware
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Delaware
ARTICLE TWO
MISCELLANEOUS
SECTION 2.01. For all purposes of this Second 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
Second Supplemental Indenture refer to this Second Supplemental Indenture as a
whole and not any particular Article, Section or other subdivision.
SECTION 2.02. Upon the effectiveness of this Second Supplemental Indenture,
the Indenture shall be modified in accordance herewith, but except as expressly
amended hereby and by the First Supplemental Indenture, 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 2.03. Upon effectiveness, this Second Supplemental Indenture shall
form a part of the Indenture and the Second 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 2.04. 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
Second 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 Second Supplemental Indenture
should not be construed to be an approval or disapproval of the advisability of
the amendments to the Indenture provided herein.
SECTION 2.05. The Indenture and the First Supplemental Indenture are
qualified under the TIA, and this Second Supplemental Indenture complies with
the TIA as currently in effect.
SECTION 2.06. THIS SECOND 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 2.07. This Second 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 Second Supplemental
Indenture to be duly executed as of the day and year first above written.
EXPRESS SCRIPTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇
Title:Senior Vice President and Chief Financial Officer
DIVERSIFIED PHARMACEUTICAL SERVICES, INC.,
ESI CLAIMS, INC.,
ESI MAIL PHARMACY SERVICE, INC.,
ESI/VRX SALES DEVELOPMENT CO.,
EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.,
EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.,
EXPRESS SCRIPTS VISION CORPORATION,
IVTX, INC.,
VALUE HEALTH, INC.,
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Vice President
BANKERS TRUST COMPANY, as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:Vice President