Omnicare, Inc., Issuer Each of the Guarantors Named Herein and U.S. Bank National Association (as successor trustee to SunTrust Bank), Trustee _______________ Seventh Supplemental Indenture Dated as of December 7, 2010 to Indenture Dated as of June 13, 2003 _______________ 3.75% Convertible Senior Subordinated Notes Due 2025

 

Omnicare, Inc.,

Issuer

Each of the Guarantors Named Herein

and

U.S. Bank National Association

(as successor trustee to SunTrust Bank),

Trustee

_______________

Seventh Supplemental Indenture

Dated as of December 7, 2010

to

Indenture

Dated as of June 13, 2003

_______________

3.75% Convertible Senior Subordinated Notes Due 2025

EXHIBIT A:

Form of Note

EXHIBIT B:

Form of Supplemental Indenture to be Delivered by New Guarantors

Seventh Supplemental Indenture dated as of December 7, 2010 (the “Seventh Supplemental Indenture”) between Omnicare, Inc., a Delaware corporation (the “Company”), the Guarantors (as defined below) and U.S. Bank National Association (as successor trustee to SunTrust Bank), as trustee (the “Trustee”).

 

Whereas, the Company has executed and delivered to the Trustee an Indenture dated as of June 13, 2003 (the “Base Indenture” and, as supplemented by this Seventh Supplemental Indenture, the “Indenture”) providing for the issuance from time to time of one or more series of the Company’s debt securities;

 

Whereas, Section 2.01 of the Base Indenture provides that the Company and the Trustee may enter into an indenture supplemental to the Base Indenture to establish the form or terms of Securities of any series as permitted by Section 2.01 and Section 9.01 of the Base Indenture; and

 

Whereas, the Company entered into a First Supplemental Indenture to establish the form and terms of its 6.125% Senior Subordinated Notes due June 1, 2013;

 

Whereas, the Company entered into a Second Supplemental Indenture to establish the form and terms of its 4% Junior Subordinated Convertible Debentures Due June 15, 2033;

 

Whereas, the Company entered into a Third Supplemental Indenture to establish the form and terms of its Series B 4% Junior Subordinated Convertible Debentures due June 15, 2033;

 

Whereas, the Company entered a Fourth Supplemental Indenture to establish the form and terms of its 6.75% Senior Subordinated Notes due December 15, 2013;

 

Whereas, the Company entered into a Fifth Supplemental Indenture to establish the form and terms of its 6.875% Senior Subordinated Notes due December 15, 2015;

 

Whereas, the Company entered into a Sixth Supplemental Indenture to establish the form and terms of its 7.75% Senior Subordinated Notes due June 1, 2020; and

 

Whereas, the Company is entering into this Seventh Supplemental Indenture to establish the form and terms of its 3.75% Convertible Senior Subordinated Notes due 2025 (the “Notes”).

 

Now Therefore, in consideration of the premises and covenants contained herein, it is hereby agreed as follows:

 

 

 

 

 

“3.25% Debentures” means the $977.5 million aggregate principal amount of 3.25% Convertible Senior Debentures due 2035 issued by the Company on December 15, 2005 and guaranteed solely by Omnicare Purchasing Company, L.P.

 

 

“4.00% Debentures” means the 4.00% Convertible Subordinated Debentures due 2033 issued by the Company on June 13, 2003 and Series B 4.00% Convertible Subordinated Debentures due 2033 issued by the Company on March 8, 2005 relating to the Trust PIERS.

 

“6.125% Notes” means the $250 million aggregate principal amount of 6.125% Senior Subordinated Notes due 2013 originally issued by the Company on June 13, 2003.

 

“6.875% Notes” means $525 million aggregate principal amount of 6.875% Senior Subordinated Notes due 2015 originally issued by the Company on December 15, 2005.

 

“7.75% Notes” means the $400 million aggregate principal amount of 7.75% Senior Subordinated Notes due 2020 originally issued by the Company on May 18, 2010.

 

“Capital Stock” means: (i) in the case of a corporation, corporate stock; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

“Cash Settlement Averaging Period” means, with respect to any Note to be converted, the twenty five (25) consecutive Trading Day period beginning on, and including, the second (2nd) Trading Day immediately after the date the conversion notice for such Note is delivered to the Conversion Agent (whether physically or, if such Note is held in the form of a Global Security, through the Depositary’s conversion program); provided, however, that if such conversion notice is received after the date of issuance of a notice of Redemption pursuant to Section 3.03 of the Base Indenture and Section 3.02 here of, then the Cash Settlement Averaging Period for such Note means the twenty five (25) consecutive Trading Days beginning on, and including, the twenty-eighth (28th) scheduled Trading Day prior to the applicable Redemption Date; provided, further, that with respect to any conversion of such Note arising solely by reason of the occurrence of a Fundamental Change, the Cash Settlement Averaging Period for such Note means the twenty five (25) consecutive Trading Days beginning on and including the twenty-eighth (28th) scheduled Trading Day prior to the Fundamental Change Repurchase Date relating to such Fundamental Change.

 

The term “close of business” means 5:00 p.m., New York City time.

 

“Closing Sale Price” of any share of Common Stock on any Trading Day means the closing sale price of the Common Stock (or if no closing sale price is reported, the average of the closing bid and closing ask prices or, if more than one in either case, the average of the average closing bid and the average closing ask prices) on such Trading Day as reported in composite transactions for the principal U.S. securities exchange on which the Common Stock is traded or, if the Common Stock is not listed on a U.S. national or regional securities exchange, as reported by the Pink OTC Markets Inc.  In the absence of such a quotation, the Closing Sale Price will be determined by a nationally recognized securities dealer retained by the Company for that purpose. 
60;The Closing Sale Price will be determined without reference to extended or after-hours trading.

 

“Collective Election” means, with respect to a Conversion Right Adjustment Event in which holders of Common Stock shall have the opportunity to elect the form of consideration to receive pursuant to such Conversion Right Adjustment Event, the actual election made by a majority of holders of Common Stock in such Conversion Right Adjustment Event.

 

 

“Common Stock” means the Common Stock, $1.00 par value per share, of the Company existing on the date of this Seventh Supplemental Indenture or any other shares of Capital Stock of the Company into which such Common Stock shall be reclassified or changed.

 

“Continuing Directors” means, as of any date of determination, any member of the Company’s board of directors who either (i) was a member of the board of directors of the Company on the date of this Seventh Supplemental Indenture; or (ii) was nominated for election or elected to the board of directors of the Company with the approval of a majority of the continuing directors who were members of the board of the Company at the time of the new director’s nomination or election.

 

“Conversion Consideration” means, with respect to the conversion of any Note, the consideration payable, in accordance with the Indenture, by the Company upon such conversion.

 

“Conversion Price” means, on any day, and amount equal to will equal one thousand dollars ($1,000) divided by the Conversion Rate in effect on such day.

 

“Conversion Rate” means 36.4409 shares of Common Stock per $1,000 principal amount of Notes, which amount shall be subject to adjustment pursuant to the Indenture.

 

“Credit Agreement” means the Credit Agreement, dated May 18, 2010, by and among Omnicare, Inc., the lenders parties thereto, Suntrust Bank, as administrative agent, JPMorgan Chase Bank, N.A., as joint syndication agent, and the other agents, arrangers and lenders named therein, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended (including, without limitation, as to principal amount), modified, renewed, refunded, replaced or refinanced from time to time (whether or not with the original agents or lenders and whether or not contemplated under the original agreement relating thereto).

 

“Daily Cash Settlement Amount” means, with respect to any Trading Day, cash in an amount equal to the lesser of forty dollars ($40) and the Daily Conversion Value on such Trading Day; provided, however, that the Daily Cash Settlement Amount shall be subject to adjustment pursuant to the second proviso of Section 12.02(c).

 

“Daily Conversion Value” means, for any Trading Day, one twenty-fifth (1/25) of the product of (i) the Conversion Rate in effect on such Trading Day and (ii) the Daily VWAP per share of Common Stock (or the consideration into which the Common Stock has been converted in accordance with the Indenture) on such Trading Day.

 

“Daily Net Shares” means, with respect to any Trading Day, a number of shares of Common Stock equal to the following: (i) if the Daily Conversion Value on such Trading Day exceeds forty dollars ($40), a number of shares of Common Stock equal to a fraction whose numerator is the excess of such Daily Conversion Value over forty dollars ($40) and whose denominator is the Daily VWAP per share of Common Stock on such Trading Day; and (ii) in all other cases, a number of shares of Common Stock equal to zero (0); provided, however, that the Daily Net Shares shall be subject to adjustment pursuant to the second proviso of Section 12.02(c).

 

“Daily VWAP” means, for any Trading Day, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “OCR <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one (1) share of Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company; provided, however, that the Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.

 

 

“Dividend Threshold Amount” means, with respect to a dividend or distribution described in Section 12.03(d), (i) in the event such dividend or distribution is a regular quarterly dividend, an amount equal to three and one-quarter cents ($0.0325), which amount shall be adjusted on an inversely proportional basis whenever the Conversion Rate is adjusted pursuant to the Indenture; and (ii) in all other cases, an amount equal to zero dollars ($0.00).

 

“Domestic Subsidiary” means any Subsidiary of the Company organized under the laws of the United States or any state of the United States or the District of Columbia.

 

“DTC” means The Depository Trust Company.

 

“Ex-Date” means, with respect to a distribution or dividend on the Common Stock, the first date on which the Common Stock trades the regular way on the relevant exchange or market without the right to receive such distribution or dividend.

 

“Excluded Subsidiaries” means each Domestic Subsidiary that is designated by the Company as a Domestic Subsidiary that will not be a Guarantor; provided, however, that in no event will the Excluded Subsidiaries, either individually or collectively, hold more than ten percent (10%) of the consolidated assets of the Company and its Domestic Subsidiaries as of the end of any fiscal quarter or account for more than ten percent (10%) of the consolidated revenue of the Company and its Domestic Subsidiaries during the most recent four (4) quarter period (in each case determined as of the most recent fiscal quarter for which the Company has internal financial stat ements available); provided, further, that any Domestic Subsidiary that guarantees other Indebtedness of the Company may not be designated as or continue to be an Excluded Subsidiary.  If any Domestic Subsidiaries previously designated as Excluded Subsidiaries cease to meet the requirements of the previous sentence, then the Company will promptly cause one or more of such Domestic Subsidiaries to become Guarantors so that the requirements of the previous sentence are complied with.

 

“Fundamental Change” will be deemed to have occurred when any of the following has occurred:

 

(1)

the Company becomes aware of (by way of report or other filing pursuant to Section 13(d) of the Exchange Act, proxy, written notice or otherwise) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) becomes the “beneficial owner” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than fifty percent (50%) of the Company’s Capital Stock that is at the time entitled to vote in the election of the Company’s board of directors (or comparable body);

 

(2)

the first day on which a majority of the members of the Company’s board of directors are not Continuing Directors;

 

(3)

the adoption of a plan relating to the Company’s liquidation or dissolution;

 

(4)

the consolidation or merger of the Company with or into any other Person, or the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the Company’s assets and those of the Company’s Subsidiaries taken as a whole to any “person” (as such term is used in Section 13(d)(3) of the Exchange Act), other than:

 

 

(a)

any transaction:

 

(i)

that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Company’s Capital Stock and pursuant to which transaction the holders of the Company’s Voting Stock immediately prior to such transaction have the right to exercise, directly or indirectly, fifty percent (50%) or more of the total Voting Power of all shares of the Capital Stock entitled to vote generally in elections of directors of the continuing or surviving Person immediately after giving effect to such transaction; or

 

(ii)

any merger primarily for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity; or

 

(5)

a Termination of Trading;

 

provided, however, that a Fundamental Change will be deemed not to have occurred if more than ninety percent (90%) of the consideration in the transaction or transactions (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) which otherwise would constitute a Fundamental Change under clause (1) or (4) above consists of shares of common stock, depositary receipts or other certificates representing common equity interests traded or to be traded immediately following such transaction on the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market and, as a result of the transaction or transactions, the Notes become convertible solely into such common stock, depositary receipts or other certificates representing common equity interests (and any rights attached thereto).

 

“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness.

 

“Guarantors” means each of:

 

(1)

the Domestic Subsidiaries of the Company as of the Issue Date, other than Excluded Subsidiaries; and

 

(2)

any other Subsidiary of the Company that executes a Subsidiary Guarantee in accordance with the provisions of the Indenture,

 

and their respective successors and assigns; provided, however, that upon the release and discharge of any Person from its Subsidiary Guarantee in accordance with the Indenture, such Person shall cease to be a Guarantor.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:

 

 

(1)

interest rate swap agreements, interest rate cap agreements and interest rate collar agreements; and

 

(2)

other agreements or arrangements designed to protect such Person against fluctuations in interest rates or foreign exchange rates.

 

“Holder” means a Person in whose name a Note is registered.

 

“Indebtedness” has the meaning ascribed to it in the Base Indenture, except that, notwithstanding anything to the contrary in the Indenture or the Notes, Indebtedness does not include any liability for federal, state, local or other taxes or any settlements or judgments relating to governmental litigations or investigations.

 

“Issue Date” means December 7, 2010.

 

“Last Reported Sale Price” has the same meaning ascribed to Closing Sale Price; provided, however, that the Last Reported Sale Price of the Capital Stock or similar equity interest distributed pursuant to a Spin-Off shall be determined as if the term “Common Stock,” as used in the definition of Closing Sale Price referred instead to such Capital Stock or similar equity interest.

 

“Non-Stock Change of Control” means a transaction described in clause (1) or clause (4) of the definition of a Fundamental Change in this Section 1.01, where ten percent (10%) or more of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such transaction consists of cash or securities (or other property) that are not shares of common stock, depositary receipts or other certificates representing common equity interests traded or scheduled to be traded immediately following such transaction on the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market.

 

“Market Disruption Event” means (i) a failure by the principal U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session; or (ii) the occurrence or existence prior to 1:00 p.m., New York City time, or for more than a one-half-hour period in the aggregate during regular trading hours, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock.

 

“Maturity Date” means December 15, 2025.

 

The term “open of business” means 9:00 a.m., New York City time.

 

“Security Guarantee” means Subsidiary Guarantee.

 

“Senior Debt” means, in the case of the Company or any Guarantor:

 

(1)

all obligations of the Company or such Guarantor, as the case may be, related to the Credit Agreement, whether for principal, premium, if any, interest, including interest accruing after the filing of, or which would have accrued but for the filing of, a petition by or against the Company or such Guarantor under applicable bankruptcy laws, whether or not such interest is lawfully allowed as a claim after such filing, and all other amounts payable in connection therewith, including, without limitation, any fees, premiums, penalties, expenses, reimbursements, indemnities, damages and other liabilities; and

 

 

(2)

the principal of, premium, if any, and interest on all other Indebtedness of the Company or such Guarantor, as the case may be, other than the Notes, and all Hedging Obligations of the Company or such Guarantor, as the case may be, in each case whether outstanding on the Issue Date or thereafter created, incurred or assumed, unless, in the case of any particular Indebtedness or Hedging Obligation, the instrument creating or evidencing the Indebtedness or Hedging Obligation expressly provides that such Indebtedness or Hedging Obligation shall not be senior in right of payment to the Notes;

 

provided, however, that Senior Debt does not include:

 

(a)

Indebtedness evidenced by the Notes and the Subsidiary Guarantees;

 

(b)

Indebtedness of the Company or any Guarantor that is expressly subordinated in right of payment to any Senior Debt of the Company or such Guarantor or the Notes or the applicable Subsidiary Guarantee;

 

(c)

Indebtedness of the Company or any Guarantor that by operation of law is subordinate to any general unsecured obligations of the Company or such Guarantor;

 

(d)

Indebtedness of the Company or any Guarantor to the extent incurred in violation of any covenant prohibiting the incurrence of Indebtedness under one or more of the Company’s indentures;

 

(e)

any liability for federal, state or local taxes or other taxes owed or owing by the Company or any Guarantor;

 

(f)

accounts payable or other liabilities owed or owing by the Company or any Guarantor to trade creditors, including Guarantees thereof or instruments evidencing such liabilities;

 

(g)

amounts owed by the Company or any Guarantor for compensation to employees or for services rendered to the Company or such Guarantor;

 

(h)

Indebtedness of the Company or any Guarantor to any Subsidiary or any other affiliate of the Company or such Guarantor;

 

(i)

Capital Stock of the Company or any Guarantor;

 

(j)

Indebtedness which, when incurred and without respect to any election under Section 1111(b) of Title 11 of the U.S. Code, is without recourse to the Company or any Subsidiary;

 

(k)

the 7.75% Notes or any Guarantee thereof;

 

(l)

the 6.875% Notes or any Guarantee thereof;

 

(m)

the 6.125% Notes or any Guarantee thereof;

 

(n)

the 4.00% Debentures and the related Trust Preferred Income Securities (or any Guarantee thereof); and

 

 

(o)

any Guarantee of the 3.25% Debentures (other than a Guarantee by Omnicare Purchasing Company, L.P.).

 

“Significant Subsidiary” has the meaning ascribed to such term in Rule 1-02(w) of Regulation S-X under the Exchange Act.

 

“Subsidiary” means, with respect to any specified Person, (a) any corporation more than fifty percent (50%) of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries; or (b) any partnership, limited liability company, association, joint venture or similar business organization more than fifty percent (50%) of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.

 

A “Termination of Trading” will be deemed to have occurred if the Common Stock or other common stock into which the Notes are convertible is neither listed for trading on the New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or any U.S. system of automated dissemination of quotations of securities prices, and no American Depositary Shares or similar instruments for such common stock are so listed or approved for listing in the United States.

 

“Trading Day” means a day during which (i) trading in the Common Stock generally occurs; and (ii) there is no Market Disruption Event on the New York Stock Exchange or, if the Common Stock is not listed on the New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded.

 

“Trading Price” of the Notes on any Trading Day means the average of the secondary market bid quotations (expressed as an amount per $1,000 principal amount of Notes) obtained by the Company for five million dollars ($5,000,000) in principal amount of the Notes at approximately 3:30 p.m., New York City time, on such Trading Day from two (2) independent nationally recognized securities dealers the Company selects, which may include one or more of the Underwriters; provided, however, that if at least two (2) such bids cannot reasonably be obtained by the Company, but one (1) such bid can reasonably be obtained by the Company, then such one (1) bid will be us ed; provided, further, that if the Company cannot reasonably obtain at least one (1) bid for five million dollars ($5,000,000) in principal amount of the Notes from a nationally recognized securities dealer or if, in the Company’s reasonable judgment, the bid quotations are not indicative of the secondary market value of the Notes, then, for purposes of the Trading Price Condition only, the Trading Price of the Notes on such Trading Day will be deemed to be less than ninety eight percent (98%) of the product of the applicable Conversion Rate of the Notes and the Closing Sale Price per share of Common Stock on such Trading Day.

 

“Trust PIERS” means the $345 million aggregate principal amount 4.00% Trust PIERS due 2033 issued by Omnicare Capital Trust I on June 13, 2003 and the Series B 4.00% Trust PIERS due 2033 issued by Omnicare Capital Trust II on March 8, 2005.

 

“Underwriters” means Barclays Capital Inc., Goldman, Sachs & Co., J.P. Morgan Securities LLC, Wells Fargo Securities, LLC, Mitsubishi UFJ Securities (USA), Inc., RBS Securities Inc. and SunTrust Robinson Humphrey, Inc.

 

 

 

Term	Defined in Section
Aggregate Cash Settlement Amount	12.02(c)
Aggregate Net Shares	12.02(c)
Averaging Period	12.03(e)
Contingent Interest	2.06(c)
Contingent Interest Measurement Period	2.06(c)
Contingent Interest Period	2.06(c)
Contingent Interest Trading Price	2.06(c)
Contingent Payment Regulations	13.01
Conversion Agent	12.02(j)
Conversion Date	12.02(a)
Conversion Right Adjustment Event	12.04
Effective Date	12.03(f)
Event of Default	6.01
Expiration Date	12.03(e)
Fundamental Change Repurchase Date	4.01(a)
Fundamental Change Repurchase Notice	4.01(b)
Fundamental Change Repurchase Price	4.01(a)
Fundamental Change Repurchase Right	4.01(a)
Fundamental Change Repurchase Right Notice	4.02
Interest Payment Date	2.06(a)
Non-Stock Change of Control Applicable Increase	12.03(f)
Non-Stock Change of Control Period	12.03(f)
Note Measurement Period	12.01(b)
Payment Default	6.01(f)
Redemption	3.01
Reference Property	12.04
Regular Record Date	2.06(a)
Spin-Off	12.03(c)
Stock Price	12.03(f)
Subsidiary Guarantee	9.01
Trading Price Condition	12.01(b)
Valuation Period	12.03(c)

 

 

 

 

 

 

 

 

 

Article V

 

 

Notwithstanding anything to the contrary in the Indenture or the Notes, Article 5 of the Base Indenture shall, for purposes of the Notes, be deemed to be replaced with this Article V.

 

 

 

 

 

 

where,

 

CR1

=

the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for such distribution;

CR0

=

the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding such Ex-Date;

SP0

=

the average of the Last Reported Sale Prices per share of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding such Ex-Date; and

FMV

=

the fair market value (as determined by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock as of the open of business on such Ex-Date.

where,

CR1

=

the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for such Spin-Off;

CR1

=

the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding such Ex-Date;

FMV0

=

the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one (1) share of Common Stock over the first ten (10) consecutive Trading Day period immediately following, and including, the third (3rd) Trading Day after such Ex-Date (such period, the “Valuation Period”); and

MP0

=

the average of the Last Reported Sale Prices per share of Common Stock over the Valuation Period.

 

 

where,

CR1

=

the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for such dividend or distribution;

CR0

=

the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding such Ex-Date;

SP0

=

the average of the Last Reported Sale Prices per share of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding such Ex-Date;

DTA

=        the Dividend Threshold Amount; and

C

=

the amount in cash per share the Company distributes to holders of Common Stock pursuant to such dividend or distribution;

provided, however, that if C is equal to or greater than SP0, then, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive, on the date on which such cash dividend or distribution is distributed to holders of Common Stock and upon the same terms as such holders, for each $1,000 principal amount of Notes, the amount of cash a person who was a holder of record, on the record date for such dividend or distribution, of a number of shares of Common Stock equal to the Conversion Rate in effect on such Ex-Date would have been entitled to receive pursuant to such dividend or distribution.

 

 

where,

CR1

=

the Conversion Rate in effect immediately prior to the open of business on the Trading Day immediately following the Expiration Date;

CR0

=

the conversion rate in effect at 5:00 p.m., New York City time, on the Expiration Date;

AC

=

the aggregate of the cash and value of all other consideration (as determined by the Board of Directors) paid or payable for all shares of Common Stock purchased in such tender offer or exchange offer;

SP1

=

the average of the Last Reported Sale Prices per share of Common Stock over the ten (10) consecutive Trading Day period (the “Averaging Period”) commencing on, and including, the Trading Day next succeeding the Expiration Date;

OS1

=

the number of shares of Common Stock outstanding immediately after the close of business on the Expiration Date (excluding shares validly tendered and accepted for payment pursuant to such tender offer or exchange offer); and

OS0

=

the number of shares of Common Stock outstanding immediately prior to the Expiration Date (prior to giving effect to such tender offer or exchange offer).

		Stock Price
Effective Date		$	22.22			$	25.00			$	27.50			$	30.00			$	32.93			$	35.00			$	40.00			$	45.00			$	50.00			$	55.00			$	60.00			$	65.00			$	70.00			$	80.00			$	90.00			$	100.00
12/07/2010			8.5636				7.0803				6.0207				5.1805				4.3975				3.9425				3.0819				2.4545				1.9805				1.6120				1.3195				1.0834				0.8904				0.5986				0.3949				0.2508
12/15/2011			8.5636				6.5250				5.5195				4.7285				3.9968				3.5741				2.7806				2.2069				1.7757				1.4420				1.1777				0.9647				0.7908				0.5284				0.3455				0.2168
12/15/2012			8.5636				5.9695				5.0133				4.2687				3.5870				3.1966				2.4710				1.9522				1.5654				1.2675				1.0323				0.8432				0.6890				0.4565				0.2948				0.1815
12/15/2013			8.5636				5.4291				4.5132				3.8098				3.1748				2.8157				2.1576				1.6951				1.3541				1.0933				0.8883				0.7237				0.5897				0.3873				0.2468				0.1485
12/15/2014			8.5636				4.9134				4.0225				3.3511				2.7573				2.4277				1.8369				1.4324				1.1396				0.9182				0.7449				0.6061				0.4930				0.3218				0.2024				0.1190
12/15/2015			8.5636				4.4187				3.5301				2.8774				2.3172				2.0150				1.4928				1.1512				0.9117				0.7338				0.5958				0.4854				0.3951				0.2574				0.1603				0.0919
12/15/2016			8.5636				3.9204				3.0010				2.3485				1.8137				1.5389				1.0943				0.8279				0.6524				0.5264				0.4297				0.3523				0.2882				0.1889				0.1171				0.0657
12/15/2017			8.5636				3.5591				2.3884				1.6976				1.1754				0.9332				0.5976				0.4368				0.3447				0.2817				0.2334				0.1938				0.1603				0.1066				0.0660				0.0356
12/15/2018			8.5636				3.5591				1.7716				0.7833				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000
12/15/2019			8.5636				3.5591				1.8353				0.8097				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000
12/15/2020			8.5636				3.5591				1.9172				0.8435				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000
12/15/2021			8.5636				3.5591				1.9970				0.8758				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000
12/15/2022			8.5636				3.7203				2.0905				0.9131				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000
12/15/2023			8.5636				3.9121				2.1702				0.9400				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000
12/15/2024			8.5636				3.9502				2.0863				0.8722				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000
12/15/2025			8.5636				3.5591				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000				0.0000

 

In Witness Whereof, the parties hereto have caused this Seventh Supplemental Indenture to be duly executed as of the date first above written.

 

 

 

 

[Guarantor Signatures Begin on Following Page]

 

On Behalf of:

3096479 DELAWARE COMPANY, LLC

ACCU-MED SERVICES LLC

ACCU-MED SERVICES OF WASHINGTON LLC

AMBLER ACQUISITION COMPANY LLC

AMC-NEW YORK, INC.

AMC-TENNESSEE, INC.

BACH’S PHARMACY SERVICES, LLC

BADGER ACQUISITION OF OHIO LLC

BIO-PHARM INTERNATIONAL, INC.

BPNY ACQUISITION CORP.

BPTX ACQUISITION CORP.

CAMPO’S MEDICAL PHARMACY, INC.

CARE PHARMACEUTICAL SERVICES, LP

CHP ACQUISITION CORP.

CIP ACQUISITION CORP.

CLINIMETRICS RESEARCH ASSOCIATES, INC.

COMPSCRIPT-BOCA LLC

COMPSCRIPT - MOBILE, INC.

CP ACQUISITION CORP.

CTLP ACQUISITION LLC

DIXON PHARMACY LLC

ENLOE DRUGS LLC

EURO BIO-PHARM CLINICAL SERVICES, INC.

THE HARDARDT GROUP, INC.

HIGHLAND WHOLESALE LLC

HMIS, INC.

HOME PHARMACY SERVICES LLC

HYTREE PHARMACY, INC.

JHC ACQUISITION LLC

LPA ACQUISITION COMPANY, LLC

LPI ACQUISITION CORP.

MANAGED HEALTHCARE, INC.

MANAGEMENT & NETWORK SERVICES, INC.

MED WORLD ACQUISITION CORP.

MEDICAL ARTS HEALTH CARE, INC.

MEDICAL SERVICES CONSORTIUM, INC.

MHHP ACQUISITION COMPANY LLC

MOSI ACQUISITION CORP.

NATIONAL CARE FOR SENIORS LLC

NCIA ACQUISITION COMPANY, LLC

NCS HEALTHCARE OF ARIZONA, INC.

NCS HEALTHCARE OF ARKANSAS, INC.

NCS HEALTHCARE OF CONNECTICUT, INC.

NCS HEALTHCARE OF FLORIDA, INC.

NCS HEALTHCARE OF INDIANA LLC

NCS HEALTHCARE OF INDIANA, INC.

NCS HEALTHCARE OF MASSACHUSETTS, INC.

NCS HEALTHCARE OF MICHIGAN, INC.

 

 

NCS HEALTHCARE OF MINNESOTA, INC.

NCS HEALTHCARE OF MISSOURI, INC.

NCS HEALTHCARE OF MONTANA, INC.

NCS HEALTHCARE OF NEW HAMPSHIRE, INC.

NCS HEALTHCARE OF NEW JERSEY, INC.

NCS HEALTHCARE OF NEW MEXICO, INC.

NCS HEALTHCARE OF NORTH CAROLINA, INC.

NCS HEALTHCARE OF OKLAHOMA, INC.

NCS HEALTHCARE OF OREGON, INC.

NCS HEALTHCARE OF PENNSYLVANIA, INC.

NCS HEALTHCARE OF SOUTH CAROLINA, INC.

NCS HEALTHCARE OF TENNESSEE, INC.

NCS HEALTHCARE OF TEXAS, INC.

NCS HEALTHCARE OF VERMONT, INC.

NCS OF ILLINOIS, INC.

NCS SERVICES, INC.

NGC ACQUISITION COMPANY LLC

NIHAN & MARTIN LLC

NIV ACQUISITION LLC

OMNIBILL SERVICES LLC

OMNICARE CANADIAN HOLDINGS, INC.

OMNICARE CLINICAL RESEARCH, INC.

OMNICARE CLINICAL RESEARCH, LLC

OMNICARE CR INC.

OMNICARE DISTRIBUTION CENTER LLC

OMNICARE EXTENDED PHARMA SERVICES, LLC

OMNICARE HEADQUARTERS LLC

OMNICARE INDIANA PARTNERSHIP HOLDING COMPANY LLC

OMNICARE MANAGEMENT COMPANY

OMNICARE OF NEVADA LLC

OMNICARE PENNSYLVANIA MED SUPPLY, LLC

OMNICARE PHARMACIES OF MAINE HOLDING COMPANY

OMNICARE PHARMACIES OF PENNSYLVANIA EAST, LLC

OMNICARE PHARMACIES OF THE GREAT PLAINS HOLDING COMPANY

OMNICARE PHARMACY OF FLORIDA, LP

OMNICARE PHARMACY OF INDIANA, LLC

OMNICARE PHARMACY OF MAINE LLC

OMNICARE PHARMACY OF NEBRASKA LLC

OMNICARE PHARMACY OF NORTH CAROLINA, LLC

OMNICARE PHARMACY OF PUEBLO, LLC

OMNICARE PHARMACY OF SOUTH DAKOTA LLC

OMNICARE PHARMACY OF TEXAS 1, LP

OMNICARE PHARMACY OF TEXAS 2, LP

OMNICARE PURCHASING COMPANY GENERAL PARTNER, INC.

OMNICARE PURCHASING COMPANY LIMITED PARTNER, INC.

OMNICARE PURCHASING COMPANY LP

OMNICARE RESPIRATORY SERVICES, LLC

PBM-PLUS, INC.

PCI ACQUISITION, LLC

PHARMACON CORP.

 

 

PHARMACY ASSOCIATES OF GLENS FALLS, INC.

PHARMACY CONSULTANTS, INC.

PHARMACY HOLDING #1, LLC

PHARMACY HOLDING #2, LLC

PHARM-CORP OF MAINE LLC

PHARMED HOLDINGS, INC.

PP ACQUISITION COMPANY, LLC

PPS ACQUISITION COMPANY, LLC

PSI ARKANSAS ACQUISITION, LLC

RESCOT SYSTEMS GROUP, INC.

ROYAL CARE OF MICHIGAN LLC

SHC ACQUISITION CO, LLC

SHORE PHARMACEUTICAL PROVIDERS, INC.

SOUTHSIDE APOTHECARY, INC.

SPECIALIZED HOME INFUSION OF MICHIGAN LLC

SPECIALIZED PATIENT CARE SERVICES, INC.

STERLING HEALTHCARE SERVICES, INC.

SUPERIOR CARE PHARMACY, INC.

SWISH, INC.

TCPI ACQUISITION CORP.

THG ACQUISITION CORP.

THREE FORKS APOTHECARY, INC.

UC ACQUISITION CORP.

UNI-CARE HEALTH SERVICES OF MAINE, INC.

VALUE PHARMACY, INC.

VAPS ACQUISITION COMPANY, LLC

VITAL CARE  INFUSIONS,  INC.

WEBER MEDICAL SYSTEMS LLC

WILLIAMSON DRUG COMPANY, INCORPORATED

WINSLOW’S PHARMACY

ZS ACQUISITION COMPANY, LLC

            /s/ Bradley S. Abbott                                

Name: Bradley S. Abbott

Title:   Treasurer

On Behalf of:

ACCUMED, INC.

ADVANCED CARE SCRIPTS, INC.

ARLINGTON ACQUISITION I, INC.

BADGER ACQUISITION LLC

BADGER ACQUISITION OF BROOKSVILLE LLC

BADGER ACQUISITION OF KENTUCKY LLC

BADGER ACQUISITION OF MINNESOTA LLC

BADGER ACQUISITION OF ORLANDO LLC

BADGER ACQUISITION OF TAMPA LLC

BADGER ACQUISITION OF TEXAS LLC

BEST CARE HHC ACQUISITION COMPANY LLC

BEST CARE LTC ACQUISITION COMPANY LLC

CAPITOL HOME INFUSION, INC.

CARECARD, INC.

CARE4, LP

CONCORD PHARMACY SERVICES, INC.

CP SERVICES LLC

DELCO APOTHECARY, INC.

EVERGREEN PHARMACEUTICAL OF CALIFORNIA, INC.

EXCELLERX, INC.

GENEVA SUB, INC.

HORIZON MEDICAL EQUIPMENT AND SUPPLY, INC.

IN-HOUSE PHARMACIES, INC.

LANGSAM HEALTH SERVICES, LLC

LCPS ACQUISITION LLC

LOBOS ACQUISITION OF ARIZONA, INC.

LOBOS ACQUISITION, LLC

NCS HEALTHCARE OF KENTUCKY, INC.

NCS HEALTHCARE OF WASHINGTON, INC.

NEIGHBORCARE HOLDINGS, INC.

NEIGHBORCARE-INFUSION SERVICES, INC.

NEIGHBORCARE OF CALIFORNIA, INC.

NEIGHBORCARE OF MARYLAND, LLC

NEIGHBORCARE OF NORTHERN CALIFORNIA, INC.

NEIGHBORCARE OF OKLAHOMA, INC.

NEIGHBORCARE PHARMACY SERVICES, INC.

NEIGHBORCARE REPACKAGING, INC.

NEIGHBORCARE SERVICES CORPORATION

NEIGHBORCARE, INC.

NEIGHBORCARE-MEDISCO, INC.

OMNICARE ESC LLC

OMNICARE HOLDING COMPANY

OMNICARE PHARMACY AND SUPPLY SERVICES, LLC

OMNICARE PHARMACY OF COLORADO LLC

OMNICARE PHARMACY OF TENNESSEE LLC

OMNICARE PROPERTY MANAGEMENT, LLC

PBM PLUS MAIL SERVICE PHARMACY, LLC

PHARMASOURCE HEALTHCARE, INC.

 

 

PMRP ACQUISITION COMPANY, LLC

PROFESSIONAL PHARMACY SERVICES, INC.

RXC ACQUISITION COMPANY

SUBURBAN MEDICAL SERVICES, LLC

THE TIDEWATER HEALTHCARE SHARED SERVICES GROUP, INC.

 

On Behalf of:

ASCO HEALTHCARE OF NEW ENGLAND, LIMITED PARTNERSHIP

ASCO HEALTHCARE OF NEW ENGLAND, LLC

COMPASS HEALTH SERVICES, LLC

ENCARE OF MASSACHUSETTS, LLC

INSTITUTIONAL HEALTH CARE SERVICES, LLC

MEDICAL SERVICES GROUP, LLC

NEIGHBORCARE PHARMACIES, LLC

ASCO Healthcare, LLC, as

sole member and general partner with respect to

Asco Healthcare of New England, Limited

Partnership

By: NeighborCare Pharmacy Services, Inc., as sole member

On Behalf of:

APS ACQUISITION LLC

ASCO HEALTHCARE, LLC

CIC SERVICES LLC

COMPSCRIPT, LLC

D&R PHARMACEUTICAL SERVICES, LLC

DP SERVICES LLC

EVERGREEN PHARMACEUTICAL, LLC

HOME CARE PHARMACY, LLC

INTERLOCK PHARMACY SYSTEMS, LLC

LO-MED PRESCRIPTION SERVICES, LLC

NCS HEALTHCARE OF IOWA, LLC

NCS HEALTHCARE OF KANSAS, LLC

NCS HEALTHCARE OF MARYLAND, LLC

NCS HEALTHCARE OF OHIO, LLC

NCS HEALTHCARE OF WISCONSIN, LLC

NEIGHBORCARE HOME MEDICAL EQUIPMENT LLC

NEIGHBORCARE-ORCA, LLC

NEIGHBORCARE OF OHIO, LLC

NORTH SHORE PHARMACY SERVICES, LLC

OCR-RA ACQUISITION, LLC

OMNICARE OF NEW YORK, LLC

OMNICARE PHARMACIES OF PENNSYLVANIA WEST, LLC

OMNICARE PHARMACY OF THE MIDWEST, LLC

ROESCHEN’S HEALTHCARE, LLC

SPECIALIZED PHARMACY SERVICES, LLC

VALUE HEALTH CARE SERVICES, LLC

NCS HEALTHCARE OF ILLINOIS, LLC

NCS HEALTHCARE OF RHODE ISLAND, LLC

WESTHAVEN SERVICES CO., LLC

 

 

On Behalf of:

ALCARITAS BIOPHARMA, INC.

Omnicare Clinical Research, Inc., as sole member

On Behalf of:

NCS HEALTHCARE, LLC

Omnicare Holding Company, as sole member

 

 

On Behalf of:

NEIGHBORCARE OF INDIANA, LLC

NEIGHBORCARE OF VIRGINIA, LLC

      NEIGHBORCARE OF WISCONSIN, LLC

Omnicare of New York, LLC, as sole member

By:

NeighborCare Pharmacy Services, Inc., as sole member

 

 

On Behalf of:

PRN PHARMACEUTICAL SERVICES, LP

Omnicare Indiana Partnership Holding Company LLC, as general partner

 

On Behalf of:

MAIN STREET PHARMACY, L.L.C.

Professional Pharmacy Services, Inc., as manager

 

 

On Behalf of:

THE MEDICINE CENTRE, LLC

ASCO Healthcare, LLC

By: NeighborCare Pharmacy Services, as sole member

 

On Behalf of:

CCRX OF FLORIDA, LLC

CCRX of Florida Holdings, Inc.

 

 

On Behalf of:

CCRX OF ILLINOIS, LLC

CCRX of Illinois Holdings, Inc.

 

On Behalf of:

CCRX OF NEW YORK, LLC

CCRX of New York Holdings, Inc.

 

On Behalf of:

APS PHARMACY SERVICES, INC.

CCRX HOLDINGS, INC.

CCRX OF FLORIDA HOLDINGS, INC.

CCRX OF ILLINOIS HOLDINGS, INC.

CCRX OF NEW YORK HOLDINGS, INC.

CCRX OF NORTH CAROLINA HOLDINGS, INC.

CCRX OF NORTH CAROLINA, INC.

CONTINUING CARE RX, INC.

 

 

 

 

[Face of Note]

 

[Insert the following Global Security Legend if applicable pursuant to the provisions of the Indenture] THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE DEFINED HEREIN) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE (AS DEFINED HEREIN) MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE; (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.08 OF THE BASE INDENTURE (AS DEFINED HEREIN); (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.13 OF THE BASE INDENTURE; AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITA RY WITH THE PRIOR WRITTEN CONSENT OF OMNICARE, INC.

 

CUSIP 681904 AN8

 

3.75% Convertible Senior Subordinated Notes Due 2025

 

No. [__]

 

Omnicare, Inc., a Delaware corporation, for value received, hereby promises to pay to [Cede & Co.], or its registered assigns, the principal sum of _____________________ dollars ($__________) on December 15, 2025 and to pay interest thereon, as provided on the reverse hereof, until the principal and any unpaid and accrued interest are paid or duly provided for.

 

Interest Payment Dates:

June 15 and December 15, commencing on June 15, 2011.

 

Record Dates:

June 1 and December 1.

 

In Witness Whereof, Omnicare, Inc. has caused this instrument to be duly signed.

 

Omnicare, inc.

 

By:

             __________________________________

Name:

Title:

 

            __________________________________

Name:

Title:

 

 

Dated: ________________

[Trustee’s Certificate of Authentication Follows]

This is one of the Notes referred to in the within-mentioned Indenture:

 

U.S. Bank National Association, as Trustee

By:  __________________________________

       Authorized Signatory

 

[Back of Note]

3.75% Convertible Senior Subordinated Notes Due 2025

 

Capitalized terms used herein shall have the meanings assigned to them in the Indenture (as defined below) unless otherwise indicated.

 

 

Omnicare, Inc., a Delaware corporation (herein the “Company,” which term includes any successor Person under the Indenture), for value received, hereby promises to pay interest on this Note, semi-annually in arrears at a rate per annum equal to three and three quarters percent (3.75%), on June 15 and December 15 of each year (each such date, an “Interest Payment Date”), with the first payment to be made on June 15, 2011, to holders of record at 5:00 p.m., New York City time, on the immediately preceding June 1 and December 1, respectively (each such date, the “Regular Record Date,R 21; and the Interest Payment Date immediately following each Regular Record Date shall be deemed to be the Interest Payment Date that “corresponds” to such Regular Record Date), in each case except as provided in Sections 3.01, 2.06(a), and 4.01(a) of the Seventh Supplemental Indenture (as defined below).  Interest on the Notes will accrue on the principal amount from, and including, the most recent date to which interest has been paid or provided for or, if no interest has been paid, from, and including, December 7, 2010, in each case to, but excluding, the next Interest Payment Date or the Maturity Date, as the case may be.  Interest will be computed on the basis of a 360-day year of twelve 30-day months.  On the Maturity Date, the Company will pay accrued and unpaid interest on each Note to the Person to whom the Company pays the principal amount of such Note, instead of to the Holder on the preceding Regular Record Date.

 

In addition to the foregoing, if the Contingent Interest Trading Price of the Notes for each of the five (5) consecutive Trading Day period (the “Contingent Interest Measurement Period”) ending on, and including, the second (2nd) Trading Day immediately preceding the first day of any six (6) month period (each such period, a “Contingent Interest Period”) from, and including, an Interest Payment Date to, but excluding, the next Interest Payment Date, commencing with the six (6) month period beginning on, and including, December 15, 2018, is equal to or greater than one hundred and twenty percent (120%) of the principal amount of such Notes, then the Company shall pay contingent interest (“Contingent Interest”) to the Holder of this Note in accordance with Section 2.06(c) of the Seventh Supplemental Indenture.

 

The amount of Contingent Interest payable per $1,000 principal amount of this Note in respect of any Contingent Interest Period, if applicable, shall be equal to three eighths of one percent (0.375%) of the average Contingent Interest Trading Price per $1,000 principal amount of the Notes during the five (5) consecutive Trading Days ending on, and including, the second (2nd) Trading Day immediately preceding the first day of such Contingent Interest Period.  Contingent Interest shall accrue from the first day of the applicable Contingent Interest Period through, but excluding, the Interest Payment Date immediately following the end of such Contingent Interest Period, and Contingent Interest shall be payable to Holders in the same manner as regular cash interest.  For avoidance of doubt, regular cash interest shall continue to accrue at the per annum rate of three and three quarters percent (3.75%) on the principal amount of this Note whether or not Contingent Interest is paid, and Contingent Interest, if any, shall be in addition to such regular cash interest.

 

As used herein, the term “interest” includes Contingent Interest, if any, but without duplication.

 

 

 

Except as provided in the immediately following paragraph, principal and interest on this Note will be paid (i) if this Note is held in the form of Global Security, to the Depositary or its nominee in immediately available funds; (ii) if this Note is a definitive Note that is not held in the form of a Global Security and that has an aggregate principal amount of five million dollars ($5,000,000) or less, by check mailed to the Holder of this Note; and (iii) if this Note is a definitive Note that is not held in the form of a Global Security and that has an aggregate principal amount of more than five million dollars ($5,000,000), by wire transfer in immediately available funds at the election of the Holder of this Note, which election is duly delivered to the Trustee at least fifteen (15) Business Days before the relevant Interest Paym ent Date or other payment date, as applicable.

 

At the Maturity Date, the Company will pay the principal and interest (i) if this Notes is held in the form of a Global Security, to the Depositary or its nominee in immediately available funds; and (ii) if this Note is a definitive Note that is not held in the form of a Global Security, at the Company’s office or agency in New York City, which initially will be the corporate trust office of the Trustee in New York City.

 

 

Initially, the Trustee under the Indenture will act as Paying agent, Registrar and Conversion Agent.  The Company may change any Paying Agent, Registrar or Conversion without notice to any Holder.  The Company or any of its Subsidiaries may act in any such capacity.

 

 

This Note is one of a duly authorized issue of Notes of the Company issued and issuable in one or more series under an Indenture (the “Base Indenture”), dated as of June 13, 2003, between Omnicare, Inc., a Delaware corporation (the “Company”), and U.S. Bank National Association (as successor trustee to SunTrust Bank), as trustee (the “Trustee,” which term includes any successor Trustee), as supplemented by the Seventh Supplemental Indenture (the “Seventh Supplemental Indenture,” and, together with the Base Indenture, the “Indenture”), dated as of December 7, 2010, among the Company, the Guarantors named therein and the Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, duties and limitations of rights and immunities thereunder of the Company, the Guarantors, the Trustees and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered.  All Notes issued under the Indenture will be treated as a single class of securities under the Indenture.  The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb).  The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms.  To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling to the extent of such conflict.

 

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture.  Requests may be made to:

 

Omnicare, Inc.

100 East RiverCenter Boulevard

Covington, Kentucky  41011

Attention:  Corporate Secretary

 

 

 

On or before December 15, 2018, this Note will not be redeemable at the Company’s option.  Subject to, and except as provided in, Article III of the Seventh Supplemental Indenture and Article 3 of the Base Indenture, the Company shall have the right, at the Company’s option, at any time, on a Redemption Date after December 15, 2018, to redeem (a “Redemption”) all or, from time to time, any part of this Note at a Redemption Price payable in cash equal to the principal amount of the Note to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, such Redemption Date if the Closing Sale Price per share of Common Stock is more than one hundred and twenty percent (120%) of the then current Conversion Price for each of at least twenty (20) Trading Days in the thirty (30) consecutive Trading Days ending on, and including, the Trading Day prior to the mailing of the notice of Redemption pursuant to Section 3.03 of the Base Indenture and Section 3.02 of the Seventh Supplemental Indenture; provided, however, that if the Redemption Date with respect to this Note is after a Regular Record Date for the payment of an installment of interest and on or before the related Interest Payment Date, then accrued and unpaid interest on this Note to, but excluding, such Redemption Date shall be paid, on such Redemption Date, to the Holder of this Note at the close of business on such Regular Record Date, and the Holder surrendering this Note for Redemption shall not be entitled to any such interest unless such Holder was also the Holder of record of this Note at the close of business on such Regular Record Date; provided, further, that in no event shall the Company redeem any Notes at a time when the Company has failed to pay interest on the Notes and such failure to pay is continuing.

 

 

Subject to, and except as provided in, Article IV of the Seventh Supplemental Indenture, if a Fundamental Change occurs at any time prior to the Maturity Date, then the Holder of this Note, if not previously repurchased or redeemed by the Company, shall have the right (the “Fundamental Change Repurchase Right”), at such Holder’s option, to require the Company to repurchase all of this Note (or any portion thereof that is a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof), on a date selected by the Company (the “Fundamental Change Repurchase Date”), which Fundamental Change Repurchase Date shall be no later than thirty five (35) calendar days, nor earlier than twent y (20) calendar days, after the date the Fundamental Change Repurchase Right Notice is mailed in accordance with Section 4.02 of the Seventh Supplemental Indenture, at a price (the “Fundamental Change Repurchase Price”), payable in cash, equal to one hundred percent (100%) of the principal amount of this Note to be so repurchased, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date; provided, however, that if the Fundamental Change Repurchase Date with respect to this Note is after a Regular Record Date for the payment of an installment of interest and on or before the related Interest Payment Date, then accrued and unpaid interest on this Note to, but excluding, such Fundamental Change Repurchase Date shall be paid, on such Fundamental Change Repurchase Date, to the Holder of this Note at the close of business on such Regular Record Date, and the Holder surrendering this Note for repurchase shall not be entitled to any such interest unless such Holder was also the Holder of record of this Note at the close of business on such Regular Record Date; provided, further, that in no event shall the Company redeem any Notes at a time when the Company has failed to pay interest on the Notes and such failure to pay is continuing.

 

 

The registered Holder of this Note will be treated as its owner for all purposes.

 

 

 

The Indenture and the Notes may be amended only as provided in Article 9 of the Base Indenture and Article VII of the Seventh Supplemental Indenture.  Generally, without the consent of each Holder affected, an amendment or waiver may not (1) extend the Maturity Date; (2) reduce the rate or extend the time for payment of interest on any Note; (3) reduce the principal amount of any Note; (4) reduce any amount payable upon Redemption of, or upon the exercise of a Fundamental Change Repurchase Right with respect to, any Note; (5) impair the right of a Holder to institute suit for payment of any Note; (6) change the currency in which any Note is payable; (7) change the obligation of the Company to redeem any Notes called for Redemption on a Redemption Date in a manner materially adverse to the Holders; (8) change the obligation o f the Company to repurchase any Notes upon a Fundamental Change in a manner materially adverse to the Holders; (9) impair or adversely affect the right of a Holder to convert any Note into cash and, if applicable, shares of Common Stock or reduce the Conversion Rate, except as permitted pursuant to the Indenture; (10) change the obligation of the Company to maintain an office or agency in New York City; (11) modify the provisions of the Indenture with respect to modification and waiver (including waiver of a Default or an Event of Default), except to increase the percentage required for modification or waiver or to provide for the consent of each affected Holder; or (12) reduce the percentage in aggregate principal amount of the Notes required for consent to any modification of the Indenture that does not require the consent of each affected Holder.

 

 

Subject to Article 6 of the Base Indenture and Article VI of the Seventh Supplemental Indenture, Events of Default include the following events: (1) the Company defaults for thirty (30) days in the payment when due of interest on the Notes, whether or not such payment is prohibited by Article 11 of the Base Indenture; (2) the Company defaults in payment when due of the principal of, or premium, if any, on the Notes, whether or not such payment is prohibited by Article 11 of the Base Indenture; (3) the Company’s failure to comply with Article III, Article IV or Article V of the Seventh Supplemental Indenture or with Article 3 of the Base Indenture; (4) the Company’s failure to deliver the consideration due, in accordance with the Indenture, upon the conversion of any Note and the continuance of such failure for five (5) day s following the scheduled settlement date for such conversion; (5) failure by the Company or any of the Guarantors that is a Significant Subsidiary of the Company for sixty (60) days after notice to comply with any of the other agreements in the Indenture; (6) the Company defaults under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company or any of its Significant Subsidiaries (or the payment of which is guaranteed by the Company or any of its Significant Subsidiaries), whether such indebtedness or guarantee exists on, or is created after, the Issue Date, if such default (x) is caused by a failure to pay principal of such indebtedness at its final stated maturity after giving effect to any grace period provided in such indebtedness on the date of such default (a “Payment Default”); or (y) results in the acceleration of such indeb tedness prior to its express maturity, and, in each case, the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates one hundred million dollars ($100,000,000) or more; (7) failure by the Company or any of its Significant Subsidiaries to pay final, non-appealable judgments aggregating in excess of one hundred million dollars ($100,000,000) that are not covered by insurance or as to which an insurer has not acknowledged coverage in writing, which judgments are not paid, discharged or stayed for a period of sixty (60) days; (8) except as permitted by the Indenture, any Subsidiary Guarantee of a Significant Subsidiary of the Company shall be held in any final, non-appealable judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor that is a Significant Subsidiary of the Company, or a ny Person acting on behalf of any such Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee; and (9) certain bankruptcy-related events occur with respect to the Company or any of its Significant Subsidiaries.

 

 

The Holders of a majority in aggregate principal amount of the Notes at the time outstanding, by notice to the Trustee (and without notice to any other Holder), may waive an existing Default or Event of Default and its consequences except (i) the failure, by the Company, to pay principal of or interest on any Notes when due; (ii) the failure, by the Company, to convert any Note in accordance with, and as required by, Article XII of this Seventh Supplemental Indenture; (iii) the failure, by the Company, to pay the Redemption Price on the Redemption Date in accordance with Article III hereof and Article III of the Seventh Supplemental Indenture in connection with a Redemption or to pay the Fundamental Change Repurchase Price in accordance with Article IV of the Seventh Supplemental Indenture in connection with a Holder’s exercise of its Fundamental Change Repurchase Right; or (iv) the failure, by the Company, to comply with any of the provisions of the Indenture the amendment of which would require, pursuant to Article 9 hereof, the consent of the Holder of each outstanding Note affected.

 

13.           Conversion Rights.

 

In certain circumstances, this Note may be converted into cash and, if applicable, shares of Common Stock as provided in Article XII of the Seventh Supplemental Indenture.  Prior to December 15, 2023, this Note may be converted only if the conditions set forth in Section 12.01(b) of the Seventh Supplemental Indenture are satisfied.  The Notes may be converted at any time on or after December 15, 2023 until the close of business on the Business Day immediately preceding the Maturity Date.

 

If this Note is then convertible, to convert this Note, the Holder hereof must (i) complete, manually sign and deliver to the Conversion Agent the conversion notice on the back of this Note (or a facsimile of such conversion notice); (ii) surrender this Note (together with appropriate endorsements and transfer documents) to the Conversion Agent; and (iii) if applicable, deliver to the Conversion Agent any funds, taxes or duties required to be delivered pursuant to Section 12.02(f) or Section 12.02(h) of the Seventh Supplemental Indenture; provided, however, that if this Note is held in the form of a Global Security, then (x) in lieu of manually signing and delivering such conversion notice (or facsimile thereof), such Hold er must deliver to Depositary the appropriate instruction form for conversion pursuant to the Depositary’s conversion program; and (y) such surrender of this Note pursuant to clause (ii) shall be made by book-entry transfer through the Depositary.  Subject to Section 12.02(e) of the Seventh Supplemental Indenture, this Note will be deemed to have been converted as of 5:00 p.m., New York City time, on the date (such date, the “Conversion Date”) that all the conditions of the immediately preceding sentence have been satisfied.

 

Subject to the terms of the Indenture, upon conversion, the amount of cash and, if applicable, shares of Common Stock due will be determined based on the Conversion Rates and Daily VWAPs per share of Common Stock during a twenty five (25) Cash Settlement Averaging Period.

 

13.           Trustee Dealings with Company.

 

Subject to certain limitations, the Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.

 

 

No past, present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or such Guarantor under the Notes, the Subsidiary Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.  Each Holder, by accepting a Note, waives and releases all such liability.  This waiver and release are part of the consideration for issuance of the Notes.

 

 

 

The payment by the Company of the principal of and interest on this Note is fully and unconditionally guaranteed on a joint and several basis by each of the Guarantors on the terms set forth in the Indenture.  The Subsidiary Guarantee of each Guarantor will be subordinated in right of payment to all existing and future Senior Debt of such Guarantor.

 

 

This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

 

 

Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN CON (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= Joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

 

Each Holder by accepting a Note agrees that the payment of principal, premium and if any, interest, on each Note is subordinated in right of payment to the extent and in the manner provided in Article 11 of the Base Indenture and Article XI of the Seventh Supplemental Indenture, to the prior payment in full of all existing and future Senior Debt (whether outstanding on the date of the Seventh Supplemental Indenture or thereafter created, incurred, assumed or guaranteed), and the subordination is for the benefit of holders of Senior Debt.

 

 

Each Holder and beneficial owner of a Note, by its purchase of such Note, is deemed to make certain agreements relating to the tax treatment of such Note.  See Article XIII of the Seventh Supplemental Indenture.

 

 

THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY..

 

OPTION OF HOLDER TO EXERCISE FUNDAMENTAL CHANGE REPURCHASE RIGHT

 

If you want to elect to have this Note purchased by the Company pursuant to Article IV of the Seventh Supplemental Indenture, check the box: o

 

If you want to elect to have only part of the Note purchased by the Company pursuant to Article IV of the Seventh Supplemental Indenture, state the amount you elect to have purchased:

 

$_________________

Date:  _____________

 

Your Signature:    _____________________________________________________

(Sign exactly as your name appears on the face

of this Note)

 

Tax Identification No.:  __________

 

 

Signature Guarantee*:  _____________________________________________________

 

________________

 

*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY*

 

The following exchanges of a part of this Global Security for an interest in another Global Security or for a permanent Security, or exchanges of a part of another Global Security or permanent Security for an interest in this Global Security, have been made:

 

Date of Exchange	Amount of Decrease in Principal Amount of this Global Security	Amount of Increase in Principal Amount of this Global Security	Principal Amount of this Global Security Following such Decrease or Increase	Signature Authorized Officer of Trustee or Security Custodian

________________

 

*	This schedule should be included only if the Note is issued in global form.

 

 

FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY NEW GUARANTORS

 

W I T N E S S E T H

 

 

In Witness Whereof, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

Omnicare, inc.

 

By: _____________________________________________________

Name:

Title:

 

[name of New Guarantor]

 

By: _____________________________________________________

Name:

Title:

 

U.S. Bank national association, as Trustee

 

By: _____________________________________________________

Name:

Title: