INDEMNIFICATION
AGREEMENT
dated as of
__________________________, between
EXPRESS SCRIPTS, INC. (the
"Company"),
and
[Name]
("Indemnitee")
WHEREAS, the
Board of Directors has determined that it is in the best interests
of the Company and the Company’s stockholders to attract and
retain the most capable persons as directors and officers of the
Company and that the Company should act to assure such persons that
there will be adequate certainty of protection through insurance
and indemnification against risks of claims and actions against
them arising out of their service to and activities on behalf of
the Company; and
WHEREAS, the Company has adopted provisions in
its current Amended and Restated Certificate of Incorporation, as
amended, and its Third Amended and Restated By-laws (collectively,
the "Charter Documents") providing for indemnification of its
officers and directors to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, and
the Company wishes to clarify and enhance the rights and
obligations of the Company and Indemnitee with respect to
indemnification; and
WHEREAS, in
order to induce and encourage highly experienced and capable
persons such as Indemnitee to serve and continue to serve as
directors and officers of the Company and in any other capacity
with respect to the Company, and to otherwise promote the desirable
end that such persons will resist what they consider unjustified
lawsuits and claims made against them in connection with the good
faith performance of their duties to the Company, with the
knowledge that certain costs, judgments, penalties, fines,
liabilities and expenses incurred by them in their defense of such
litigation are to be borne by the Company and they will receive the
maximum protection against such risks and liabilities as may be
afforded by law, the Board of Directors of the Company has
determined that the following Agreement is reasonable and prudent
to promote and ensure the best interests of the Company and its
stockholders; and
WHEREAS, the
Company desires to have Indemnitee continue to serve as a director
or officer of the Company and in such other capacity with respect
to the Company as the Company may request, as the case may be, free
from undue concern for unpredictable, inappropriate or unreasonable
legal risks and personal liabilities by reason of Indemnitee acting
in good faith in the performance of Indemnitee's duty to the
Company; and Indemnitee desires to continue so to serve the
Company, provided, and on the express condition, that he or she is
furnished with the indemnity set forth hereinafter;
Now, therefore,
in consideration of Indemnitee's continued service as a director or
officer of the Company, the parties hereto agree as
follows:
1.
Service by Indemnitee
. Indemnitee will serve and/or
continue to serve as a director or officer of the Company or, at
the Company's request and the agreement of the Indemnitee, another
enterprise, faithfully and to the best of Indemnitee's ability so
long as Indemnitee is duly elected or appointed and until such time
as Indemnitee is removed as permitted by law or tenders a
resignation in writing.
2.
Indemnification
. The Company shall indemnify
Indemnitee to the fullest extent permitted by the Delaware General
Corporation Law (the "DGCL") in effect on the date hereof or as
such law may from time to time be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the
Company to provide broader indemnification rights than said law
permitted the Company to provide prior to such amendment). Without
diminishing the scope of the indemnification provided by this
Section, the rights of indemnification of Indemnitee provided
hereunder shall include but shall not be limited to those rights
hereinafter set forth, except that no indemnification shall be paid
to Indemnitee:
(a)
to the extent expressly prohibited
by the DGCL or the Charter Documents;
(b)
for which payment is actually made
to Indemnitee under a valid and collectible insurance policy or
under a valid and enforceable indemnity clause, by-law or agreement
of the Company or any other company or organization on whose board
Indemnitee serves at the request of the Company, except in respect
of any indemnity exceeding the payment under such insurance,
clause, by-law or agreement;
(c)
in connection with an action, suit
or proceeding, or part thereof (including claims and counterclaims)
initiated by Indemnitee, except a judicial proceeding or
arbitration pursuant to Section 10 below to enforce rights under
this Agreement, unless the action, suit or proceeding (or part
thereof) was authorized by the Board of Directors of the
Company;
(d)
with respect to any action, suit or
proceeding brought by or on behalf of the Company against
Indemnitee that is authorized by the Board of Directors of the
Company, except as provided in Sections 4, 5 and 6
below.
3.
Action or Proceedings Other than
an Action by or in the Right of the Company . Except as limited by Section 2 above,
Indemnitee shall be entitled to the indemnification rights provided
in this Section if Indemnitee is a party or is threatened to be
made a party to any Proceeding (other than an action by or in the
name of the Company) by reason of the fact that Indemnitee is or
was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer,
employee or agent or fiduciary of any other entity (including, but
not limited to, another corporation, partnership, joint venture,
employee benefit plan or trust); or by reason of anything done or
not done by Indemnitee in any such capacity. Pursuant to this
Section, Indemnitee shall be indemnified against all costs,
judgments, penalties, fines, liabilities, amounts paid in
settlement by or on behalf of Indemnitee, and Expenses actually and
reasonably incurred by Indemnitee in connection with such
Proceeding, if Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company, and with respect to any criminal Proceeding, had no
reasonable cause to believe his or her conduct was
unlawful.
4.
Indemnity in Proceedings by or in
the Name of the Company .
Except as limited by Section 2 above, Indemnitee shall be entitled
to the indemnification rights provided in this Section if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding brought by or in the name of the Company to procure
a judgment in its favor by reason of the fact that Indemnitee is or
was a director, officer, employee or agent or fiduciary of the
Company, or by reason of anything done or not done by Indemnitee in
any such capacity. Pursuant to this Section, Indemnitee shall be
indemnified against all costs, judgments, penalties, fines,
liabilities, amounts paid in settlement by or on behalf of
Indemnitee, and Expenses actually and reasonably incurred by
Indemnitee in connection with such Proceeding if Indemnitee acted
in good faith and in a manner Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company; provided,
however, that no such indemnification shall be made in respect of
any claim, issue, or matter as to which the DGCL expressly
prohibits such indemnification by reason of any adjudication of
liability of Indemnitee to the Company, unless and only to the
extent that the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, Indemnitee is entitled to
indemnification for such costs, judgments, penalties, fines,
liabilities and Expenses as such court shall deem
proper.
5.
Indemnification for Costs,
Charges and Expenses of Successful Party . Notwithstanding the limitations of Section
2(d), 3 and 4 above, to the extent that Indemnitee has been
successful, on the merits or otherwise, in whole or in part, in
defense of any action, suit or proceeding (including an action,
suit or proceeding brought by or on behalf of the Company) or in
defense of any claim, issue or matter therein, including, without
limitation, the dismissal of any action without prejudice, or if it
is ultimately determined that Indemnitee is otherwise entitled to
be indemnified against Expenses, Indemnitee shall be indemnified
against all Expenses actually and reasonably incurred in connection
therewith.
6.
Partial
Indemnification . If
Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the costs,
judgments, penalties, fines, liabilities or Expenses actually and
reasonably incurred in connection with any action, suit or
proceeding (including an action, suit or proceeding brought by or
on behalf of the Company), but not, however, for all of the total
amount thereof, the Company shall nevertheless indemnify Indemnitee
for the portion of such costs, judgments, penalties, fines,
liabilities and Expenses actually and reasonably incurred to which
Indemnitee is entitled.
7.
Indemnification for Expenses of a
Witness . Notwithstanding
any other provision of this Agreement, to the maximum extent
permitted by applicable law, Indemnitee shall be entitled to
indemnification against all Expenses actually and reasonably
incurred or suffered by Indemnitee or on Indemnitee's behalf if
Indemnitee appears as a witness or otherwise incurs legal or other
Expenses as a result of or related to Indemnitee's service as a
director or officer of the Company, in any threatened, pending or
completed legal, administrative, investigative or other proceeding
or matter to which Indemnitee neither is, nor is threatened to be
made, a party.
8.
Determination of Entitlement to
Indemnification . Upon
written request by Indemnitee for indemnification pursuant to
Sections 3, 4, 5, 6 or 7 the entitlement of Indemnitee to
indemnification, to the extent not provided pursuant to the terms
of this Agreement, shall, other than in case of a Change of Control
(other than a Change in Control which has been approved by a
majority of the Company's Board of Directors who were directors
immediately prior to such Change in Control), be determined by the
following person or persons who shall be empowered to make such
determination: (a) the Board of Directors of the Company by a
majority vote of Disinterested Directors, whether or not such
majority constitutes a quorum; (b) a committee of Disinterested
Directors designated by a majority vote of such directors, whether
or not such majority constitutes a quorum; (c) if there are no
Disinterested Directors, or if the Disinterested Directors so
direct, by Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee; or (d)
the stockholders of the Company. Other than in case of a Change of
Control (other than a Change in Control which has been approved by
a majority of the Company's Board of Directors who were directors
immediately prior to such Change in Control), such Independent
Counsel shall be selected by the Board of Directors and approved by
Indemnitee. Upon failure of the Board so to select such Independent
Counsel or upon failure of Indemnitee so to approve, such
Independent Counsel shall be selected upon application to a court
of competent jurisdiction. Such determination of entitlement to
indemnification shall be made not later than 30 calendar days after
receipt by the Company of a written request for indemnification.
Such request shall include documentation or information which is
necessary for such determination and which is reasonably available
to Indemnitee. Any Expenses incurred by Indemnitee in connection
with a request for indemnification or payment of Expenses
hereunder, under any other agreement, any provision of the Charter
Documents or any directors' and officers' liability insurance,
shall be borne by the Company. The Company hereby indemnifies
Indemnitee for any such Expense and agrees to hold Indemnitee
harmless therefrom irrespective of the outcome of the determination
of Indemnitee’s entitlement to indemnification. If the person
making such determination shall determine that Indemnitee is
entitled to indemnification as to part (but not all) of the
application for indemnification, such person shall reasonably
prorate such partial indemnification among the claims, issues or
matters at issue at the time of the determination.
The Company
agrees that if there is a Change in Control of the Company (other
than a Change in Control which has been approved by a majority of
the Company's Board of Directors who were directors immediately
prior to such Change in Control) then the entitlement of Indemnitee
with respect to all matters thereafter arising concerning the
rights of Indemnitee to indemnity payments under this Agreement or
any other agreement or Charter Document now or hereafter in effect
relating to events indemnifiable under this Agreement, shall be
determined by Independent Counsel in a written opinion. In case of
a Change of Control (other than a Change in Control which has been
approved by a majority of the Company's Board of Directors who were
directors immediately prior to such Change in Control), Independent
Counsel shall be selected by Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld). Upon failure
of the In
