As filed with the Securities and Exchange Commission on
December 29, 1998 Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXPRESS SCRIPTS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 43-1420563
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
14000 RIVERPORT DRIVE
MARYLAND HEIGHTS, MISSOURI 63043
(Address, including zip code, of principal executive offices)
EXPRESS SCRIPTS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
THOMAS M. BOUDREAU, ESQ.
SENIOR VICE PRESIDENT OF ADMINISTRATION, GENERAL COUNSEL AND SECRETARY
EXPRESS SCRIPTS, INC.
14000 RIVERPORT DRIVE, MARYLAND HEIGHTS, MISSOURI 63043
(314) 770-1666
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share(1) price(1) fee(1)
- --------------------------------------------------------------------------------
Class A Common
Stock, par value
$0.01 per share 250,000 shares(2) $66.75 $16,687,500 $4,922.81
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933 and based upon
the average of the high and low reported market prices of the Registrant's Class
A Common Stock on December 28, 1998.
(2) This Registration Statement also covers such additional shares of Class
A Common Stock as may be issuable pursuant to antidilution provisions of the
Express Scripts, Inc. Employee Stock Purchase Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Express Scripts, Inc. (the "Company" or the "registrant") hereby
incorporates by reference into this Registration Statement the following
documents of the registrant:
(a) Annual Report on Form 10-K for the year ended December 31, 1997.
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1998, June 30, 1998 and September 30, 1998.
(c) Current Report on Form 8-K dated February 19, 1998, and filed March
2, 1998; Current Report on Form 8-K dated February 23, 1998, and filed February
24, 1998; and Current Report on Form 8-K dated March 16, and filed March 26,
1998; Current Report on Form 8-K dated April 1, 1998, and filed April 14, 1998,
as amended on Form 8-K/A filed June 12, 1998; Current Report on Form 8-K, dated
April 23, 1998 and filed May 5, 1998; Current Report on Form 8-K, dated June 17,
1998, and filed July 20, 1998; Current Report on Form 8-K, dated July 28, 1998,
and filed August 5, 1998; Current Report on Form 8-K, dated October 12, 1998,
and filed October 27, 1998; Current Report on Form 8-K, dated October 21, 1998,
and filed October 29, 1998; and Current Report on Form 8-K, dated November 1,
1998, and filed November 20, 1998.
(d) The description of the Class A Common Stock as contained in Item 1
of the Company's Registration Statement on Form 8-A filed May 12, 1992,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated herein by reference modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Thomas M. Boudreau, Esq., whose opinion is contained in Exhibit 5.1, owned,
as of December 21, 1998, options to purchase 113,500 shares of Class A Common
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the General Corporation Law of Delaware (the "DGCL")
enables a corporation in its original certificate of incorporation or an
amendment thereto to eliminate or limit the personal liability of a director to
a corporation or its stockholders for violations of the director's fiduciary
duty, except (i) for any breach of a director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit. Article Eight of the Company's Certificate of Incorporation provides
that no director shall have any personal liability to the Company or its
stockholders for any monetary damages for breach of fiduciary duty as a
director, provided that such provision does not limit or eliminate the liability
of any director (i) for breach of such director's duty of loyalty to the Company
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of law, (iii) under Section
174 of the DGCL (involving certain unlawful dividends or stock repurchases) or
(iv) for any transaction from which such director derived an improper personal
benefit.
Section 145 of the DGCL provides, in summary, that directors and officers
of Delaware corporations are entitled, under certain circumstances, to be
indemnified against all expenses and liabilities (including attorneys' fees)
incurred by them as a result of suits brought against them in their capacity as
a director or officer, if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was unlawful; provided, that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the
corporation, unless and only to the extent that 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, they
are fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper. Any such indemnification may be made by the corporation
only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct. Article Seven of the
Company's Certificate of Incorporation entitles officers and directors of the
Company to indemnification to the fullest extent permitted by Section 145 of the
DGCL, as amended from time to time.
New York Life Insurance Company ("New York Life") maintains Directors and
Officers/Corporate Reimbursement ("D&O") insurance covering directors and
officers of New York Life and its subsidiaries, including the Company, and
certain other entities for certain expenses and liabilities of such directors
and officers while acting in their capacity as such. Such D&O insurance also
covers directors and officers of the Company while New York Life, directly or
indirectly, maintains voting control of the Company.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to such provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Reference is made to the Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) of the Securities Act if, in
the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is being asserted
by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Maryland Heights, State of Missouri, on December 11,
1998.
EXPRESS SCRIPTS, INC.
By: /s/ Barrett A. Toan
Barrett A. Toan, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Barrett A. Toan, George Paz and Thomas M. Boudreau and each of them (with full
power to each of them to act alone), his or her true and lawful attorneys in
fact and agents for him or her and on his or her behalf and in his or her name,
place and stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with exhibits and any and all other documents filed with respect
thereto, with the Securities and Exchange Commission (or any other governmental
or regulatory authority), granting unto said attorneys, and each of them, full
power and authority to do and to perform each and every act and thing requisite
and necessary to be done in and about the premises in order to effectuate the
same as fully to all intents and purposes as he or she might or could do if
personally present, hereby ratifying and confirming all that said attorneys in
fact and agents, or any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
NAME TITLE DATE
/S/ BARRETT A. TOAN President, Chief Executive December 11, 1998
Barrett A. Toan Officer and Director
/S/ GEORGE PAZ Senior Vice President and Chief December 11, 1998
George Paz Financial Officer (Principal
Financial Officer)
/S/ JOSEPH W. PLUM Vice President and Chief December 11, 1998
Joseph W. Plum Accounting Officer (Principal
Accounting Officer)
/S/ HOWARD I. ATKINS Director December 16, 1998
Howard I. Atkins
/S/ JUDITH E. CAMPBELL Director December 15, 1998
Judith E. Campbell
/S/ RICHARD M. KERNAN, JR. Director December 15, 1998
Richard M. Kernan, Jr.
/S/ RICHARD A. NORLING Director December 14, 1998
Richard A. Norling
/S/ FREDERICK J. SIEVERT Director December 16, 1998
Frederick J. Sievert
/S/ STEPHEN N. STEINIG Director December 16, 1998
Stephen N. Steinig
/S/ SEYMOUR STERNBERG Director December 16, 1998
Seymour Sternberg
/S/ HOWARD L. WALTMAN Director December 16, 1998
Howard L. Waltman
/S/ Norman Zachary Director December 21, 1998
Norman Zachary
<PAGE>
EXPRESS SCRIPTS, INC.
EXHIBIT INDEX
Exhibit
NUMBER DESCRIPTION
4.1 Express Scripts, Inc. Employee Stock Purchase Plan
5.1 Opinion of Thomas M. Boudreau, Esq., Senior Vice President of
Administration, General Counsel and Secretary of the Company
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP - Minneapolis, Minnesota
23.3 Consent of Ernst & Young LLP - Pittsburgh, Pennsylvania
23.4 Consent of Thomas M. Boudreau, Esq. (included in Exhibit 5.1)
24.1 Power of Attorney (included in Signature Page)
Exhibit 4.1
EXPRESS SCRIPTS, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the Plan is to provide employees of the Company
and its Designated Subsidiaries with an opportunity to purchase Common Stock of
the Company through accumulated payroll deductions. It is the intention of the
Company to have the Plan qualify as an "Employee Stock Purchase Plan" under
Section 423 of the Internal Revenue Code of 1986, as amended. The provisions of
the Plan shall, accordingly, be construed so as to extend and limit
participation in a manner consistent with the requirement of that section of the
Code.
2. DEFINITIONS.
a) "Board" shall mean the Board of Directors of the Company.
b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
c) "Common Stock" shall mean the Class A Common Stock, par value $0.01, of
the Company.
d) "Company" shall mean Express Scripts, Inc., a Delaware corporation, and,
unless the context requires otherwise, any Designated Subsidiary.
e) "Compensation" shall mean all regular straight time gross earnings and
commissions, exclusive of payments for overtime, shift premium, incentive
payments, bonuses and other compensation, and without reduction for
contributions to any 401(k) plan sponsored by the Company.
f) "Contributions" shall mean all amounts credited to the account of a
participant pursuant to the Plan.
g) "Designated Subsidiary" shall mean any Subsidiary which has been
designated by the Board from time to time in its sole discretion as eligible to
participate in the Plan.
h) "Employee" shall mean any person who is an employee of the Company for
tax purposes whose customary employment with the Company is at least twenty (20)
hours per week and more than five (5) months in a calendar year. For purposes of
the Plan, the employment relationship shall be treated as continuing intact
while the individual is on short term disability or other leave of absence
approved by the Company. Where the period of leave exceeds 90 days and the
individual's right to reemployment is not guaranteed either by statute or by
contract, the employment relationship shall be deemed to have terminated on the
91st day of such leave.
i) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
j) "Offering Date" shall mean the first business day of each Offering
Period of the Plan.
k) "Offering Period" shall mean a period of six (6) months commencing on
March 1 and September 1 of each year (commencing with March 1, 1999) except as
otherwise indicated by the Company.
l) "Plan" shall mean this Employee Stock Purchase Plan.
m) "Purchase Date" shall mean the last day of each Offering Period of the
Plan.
n) "Subsidiary" shall mean a corporation, domestic or foreign, which not
less than 50% of the voting shares are held by the Company or a Subsidiary,
whether or not such corporation now exists or is hereafter organized or acquired
by the Company or a Subsidiary.
3. ELIGIBILITY.
a) Any person who is an Employee of the Company as of the Offering Date of
a given Offering Period, who has continuously been an Employee for at least
three months, and who is not a "senior executive" of the Company, as such term
may be defined from time to time by the Board (or any committee administering
the Plan in accordance with Section 13 hereof), shall be eligible to participate
in such Offering Period under the Plan, subject to the requirements of Section
5(a) and the limitations imposed by Section 423(b) of the Code.
b) Any provisions of the Plan to the contrary notwithstanding, no Employee
shall be granted an option under the Plan (i) if, immediately after the grant,
such Employee (or any other person whose stock would be attributed to such an
Employee pursuant to Section 424(d) of the Code)would own stock and/or hold
outstanding options to purchase stock possessing five percent (5%)or more of the
total combined voting power or value of all classes of stock of the Company or
of any Subsidiary, or (ii) if such option would permit his or her rights to
purchase stock under all employee stock purchase plans (described in Section 423
of the Code) of the Company and its Subsidiaries to accrue at a rate which
exceeds twenty-five thousand dollars ($25,000)of fair market value of such stock
(determined at the time such option is granted) for each calendar year in which
such option is outstanding at any time.
4. OFFERING PERIODS. The Plan shall be implemented by a series of Offering
Periods of six (6) months duration, with new Offering Periods commencing on or
about March 1 and September 1 of each year (or at such other time or times as
may be determined by the Board of Directors). The Plan shall continue until
terminated in accordance with Section 19 hereof. The Board shall have the power
to change the duration and/or the frequency of the Offering Period with respect
to future offerings without stockholder approval if such change is announced at
least fifteen (15) days prior to the scheduled beginning of the first Offering
Period to be affected.
5. PARTICIPATION.
a) An eligible Employee may become a participant in the Plan by completing
a subscription agreement (in such form and manner as may be approved by the
Board or the committee administering the Plan) authorizing payroll deductions
and filing it with the Company's payroll office at least five (5) business days
prior to the applicable Offering Date. A subscription agreement in effect for a
participant for a particular Offering Period will continue in effect for
subsequent Offering Periods if the participant remains an eligible Employee and
has not withdrawn the subscription agreement pursuant to Section 10.
b) Payroll deductions shall commence on the first payroll following the
Offering Date and shall end on the last payroll paid in the Offering Period to
which the subscription agreement is applicable, unless sooner terminated by the
participant as provided in Section 10 hereof.
c) By enrolling in the Plan, each participant will be deemed to have
authorized the establishment of a brokerage account in his or her name at a
securities brokerage firm, which firm shall serve as custodial agent for the
purpose of holding shares purchased under the Plan. The account will be governed
by, and subject to, the terms and conditions of a written agreement with the
firm approved by the Board or the committee administering the Plan, which
agreement shall, among other things, reflect the restrictions contained in
Section 21(c) and Section 21(d).
d) Subject to the limitations of Section 3 hereof and Section 423(b)(8) of
the Code, all cash dividends, if any, paid with respect to shares of Common
Stock purchased under the Plan and held in a participant's account established
under Section 5(c) shall be automatically invested in shares of Common Stock
purchased at One Hundred Percent (100%) of fair market value (as determined
under Section 7(b)) on the next Purchase Date. All non-cash distributions on
Common Stock purchased under the Plan and held in a participant's account
established under Section 5(c) shall be paid to the participant as soon as
practical.
6. METHOD OF PAYMENT OF CONTRIBUTIONS.
a) The participant shall elect to have payroll deductions made each pay
period during the Offering Period in an amount not less than one percent (1%)
and not more than ten percent (10%), in whole number percentage increments, of
such participant's Compensation in each pay period. All payroll deductions made
by a participant shall be credited to his or her account under the Plan. A
participant may not make any additional payments into such account. Except as
otherwise provided in this Section 6(a), all Employees granted options under the
Plan shall have the same rights and privileges.
b) A participant may increase or decrease his or her payroll deductions by
filing a new subscription agreement at any time during an Offering Period. The
change may not become effective sooner than the next pay period after filing of
the subscription agreement. The Board or the committee administering the Plan,
at its discretion, may limit the number of participation rate changes during any
Offering Period and may, in its discretion, require up to five (5) business days
prior written notice.
c) A participant may discontinue his or her participation in the Plan as
provided in Section 10 hereof.
d) Notwithstanding the foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and Section 6(a) hereof, a participant's payroll
deductions may be decreased to zero percent (0%) at any time during the Offering
Period. Payroll deductions shall recommence at the rate provided in such
participant's subscription agreement at the beginning of the first Offering
Period which is scheduled to end in the following calendar year, unless
terminated by the participant as provided in Section 10 hereof.
e) At the time of each exercise of a participant's option, and at the time
any Common Stock issued under the Plan to a participant is disposed of, the
participant must adequately provide for the Company's federal, state or other
tax withholding obligations, if any, that arise upon the exercise of the option
or the disposition of the Common Stock. At any time, the Company may, but will
not be obligated to, withhold from the participant's compensation the amount
necessary for the Company to meet applicable withholding obligations, including
but not limited to, any withholding required to make available to the Company
any tax deductions or benefits attributable to the sale or early disposition of
Common Stock by the participant.
7. GRANT OF OPTION.
a) On the Offering Date of each Offering Period, each eligible Employee
participating in such Offering Period shall automatically be deemed to have been
granted an option to purchase on the Purchase Date a number of shares of the
Company's Common Stock determined by dividing such Employee's Contributions
accumulated prior to such Purchase Date and retained in the participant's
account as of the Purchase Date by eighty-five percent (85%)of the fair market
value of the Company's Common Stock on the Purchase Date; provided, however,
that in no event shall an Employee be permitted to purchase during each Offering
Period more than 1,000 shares (subject to any adjustment pursuant to Section 18)
and provided further that such purchase shall be subject to the limitations set
forth in Section 3(b). The fair market value of the Company's Common Stock shall
be determined as provided in Section 7(b).
b) The fair market value of the Company's Common Stock on a given date
shall be equal to the closing sales price of Common Stock on the date preceding
the date of determination (or, in the event that the Common Stock is not traded
on such date, on the immediately preceding trading date on which there was a
closing sales price), as reported by The Nasdaq National Market or, in the event
the Common Stock is listed on a stock exchange, the fair market value per share
shall be the closing sales price on such exchange on the date preceding the date
of determination (or, in the event that the Common Stock is not traded on such
date, on the immediately preceding trading date), as reported in THE WALL STREET
JOURNAL. In the absence of any listing of the Common Stock on The Nasdaq
National Market or on any established stock exchange, the fair market value of
the Common Stock on a given date shall be determined in good faith by the Board.
8. EXERCISE OF OPTION. Unless a participant withdraws from the Plan as
provided in Section 10 hereof, his or her option for the purchase of shares will
be exercised automatically on the Purchase Date of the Offering Period, and the
maximum whole number of shares subject to such option will be purchased at the
applicable option price with the accumulated Contributions in his or her
account, subject to the limitations in this Plan. The shares purchased upon
exercise of an option hereunder shall be held in the participant's account
established under Section 5(c) pursuant to Section 21(c) and Section 21(d).
During his or her lifetime, a participant's option to purchase shares hereunder
is exercisable only by him or her.
9. DELIVERY. As promptly as practicable after the Purchase Date of each
Offering Period, the Company shall arrange the delivery by direct deposit into
the account established for each participant under Section 5(c), the shares
purchased upon exercise of his or her option. Any cash remaining to the credit
of a participant's account under the Plan after a purchase by him or her of
shares on the Purchase Date, other than amounts representing fractional shares,
will be returned to him or her as soon as practicable. Amounts representing
fractional shares will be carried forward for use in subsequent purchases.
10. VOLUNTARY WITHDRAWAL; TERMINATION OF EMPLOYMENT.
a) A participant may withdraw from an Offering Period all but not less than
all the Contributions credited to his or her account under the Plan at any time
prior to [five (5)] business days prior to the Purchase Date of the Offering
Period by completing a Company approved notice of withdrawal. All of the
participant's Contributions credited to his or her account will be paid to him
or her as soon as practicable after receipt of his or her notice of withdrawal
and his or her option of the current period will be automatically terminated,
and no further Contributions for the purchase of shares will be made during the
Offering Period. Payroll deductions shall not resume at the beginning of the
succeeding Offering Period unless the participant delivers to the Company a new
subscription agreement in accordance with this Plan.
b) A participant's withdrawal from an offering will not have any effect
upon his or her eligibility to participate in a succeeding Offering Period or in
any similar plan which may hereafter be adopted by the Company.
c) Upon a participant's ceasing to be an Employee prior to the Purchase
Date of an Offering Period for any reason, including retirement or death, the
Contributions credited to his or her account and not yet applied to the purchase
of shares will be returned to him or her, or, in the case of his or her death,
to the person or persons entitled thereto under Section 14, and his or her
option will be automatically terminated, provided that if the Company does not
learn of such death more than five (5) business days prior to the Purchase Date,
payroll deductions credited to the participant's account may be applied to the
purchase of shares under the Plan on such Purchase Date.
d) In the event an Employee's salary grade level is elevated or title or
position is changed so as to make an Employee a "senior executive" of the
Company during the Offering Period in which the Employee is a participant, he or
she will be deemed to have elected to withdraw from the Plan and Contributions
credited to his or her account will be returned to him or her and his or her
option terminated.
11. INTEREST. No interest shall accrue on the Contributions of a
participant in the Plan.
12. STOCK.
a) The maximum number of shares of the Company's Common Stock which shall
be made available for purchase under the Plan shall be 250,000 shares, subject
to adjustment upon changes in capitalization of the Company as provided in
Section 18 hereof. These shares may be newly issued or may be purchased for the
Plan on the open market or from private sources. If the total number of shares
which would otherwise be subject to options granted pursuant to Section 7(a) on
the Offering Date of an Offering Period exceeds the number of shares then
available under the Plan (after deduction of all shares for which options have
been exercised or are then outstanding), the Company shall make a pro rata
allocation of the shares remaining available for option grant in as uniform a
manner as shall be practicable and as it shall determine to be equitable. In
such event, the Company shall give written notice of such reduction of the
number of shares subject to the option to each Employee affected thereby and
shall similarly reduce the rate of Contributions, if necessary.
b) The participant will have no interest or voting right in shares covered
by his or her option until such option has been exercised.
c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the "Street Name" of a Company
approved broker, subject to Section 21 hereof.
13. ADMINISTRATION. The Board, or a committee named by the Board, shall
supervise and administer the Plan and -------------- shall have full power to
adopt, amend and rescind any rules deemed desirable and appropriate for the
administration of the Plan and not inconsistent with the Plan, to construe and
interpret the Plan, and to make all other determinations necessary or advisable
for the administration of the Plan. The composition of the committee shall be in
accordance with the requirements to obtain or retain any available exemption
from the operation of Section 16(b) of the Exchange Act pursuant to Rule 16b-3
promulgated thereunder. To aid in the administration of the Plan, the Board or
the committee may appoint a Plan administrator and allocate to it certain
limited responsibilities to carry out the directives of the Board or the
committee in all phases of the administration of the Plan.
14. DESIGNATION OF BENEFICIARY.
a) A participant may file a written designation of a beneficiary who is to
receive shares and cash, if any, from the participant's account under the Plan
in the event of such participant's death subsequent to the end of an Offering
Period but prior to delivery to him or her of such shares and cash. In addition,
a participant may file a written designation of a beneficiary who is to receive
any cash from the participant's account under the Plan in the event of such
participant's death prior to the Purchase Date of an Offering Period. If a
participant is married and the designated beneficiary is not the spouse, spousal
consent shall be required for such designation to be effective.
b) Such designation of beneficiary may be changed by the participant (and
his or her spouse, if any) at any time by written notice. In the event of the
death of a participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such participant's death, the
Company shall deliver such shares and/or cash to the executor or administrator
of the estate of the participant, or if no such executor or administrator has
been appointed (to the knowledge of the Company), the Company, in its
discretion, may deliver such shares and/or cash to the spouse or to any one or
more dependents or relatives of the participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as the Company may
designate.
15. TRANSFERABILITY. Neither Contributions credited to a participant's
account nor any rights with regard to the exercise of an option or to receive
shares under the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way (other than by will, the laws of descent and
distribution, or as provided in Section 14 hereof) by the participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as election to withdraw all
Contributions in accordance with Section 10 hereof.
16. USE OF FUNDS. All Contributions received or held by the Company under
the Plan may be used by the Company for any corporate purpose, and the Company
shall not be obligated to segregate such Contributions.
17. REPORTS. Individual accounts will be maintained for each participant in
the Plan. Statements of account will be given to participating Employees
promptly following the Purchase Date, which statements will set forth the amount
of Contributions, the per share purchase price, the number of shares purchased,
the remaining cash balance, if any, and the dividends received, if any, for the
period covered.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; CORPORATE TRANSACTIONS.
a) CHANGES IN CAPITALIZATION. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock covered by
each option under the Plan which has not yet been exercised and the number of
shares of Common Stock which have been authorized for issuance under the Plan
but have not yet been placed under option (collectively, the "Reserves"), as
well as the price per share of Common Stock covered by each option under the
Plan which has not yet been exercised, shall be appropriately adjusted for any
changes in the Common Stock resulting from a stock split, reverse stock split,
stock dividend, combination or reclassification of the Common Stock, or any
similar changes in the Company's capitalization. Such adjustment shall be made
by the Board or the committee administering this Plan, whose determination in
that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an option.
b) CORPORATE TRANSACTIONS. In the event of the proposed dissolution or
liquidation of the Company, the Offering Period will terminate immediately prior
to the consummation of such proposed action, unless otherwise provided by the
Board. In the event of a proposed sale of all or substantially all of the assets
of the Company, or the merger of the Company into another corporation, each
option under the Plan shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Board determines, in the exercise of its sole
discretion and in lieu of such assumption or substitution, to shorten the
Offering Period then in progress by setting a new Purchase Date (the "New
Purchase Date"). If the Board shortens the Offering Period then in progress in
lieu of assumption or substitution in the event of a merger or sale of assets,
the Board shall notify each participant in writing, at least ten (10) days prior
to the New Purchase Date, that the Purchase Date for his or her option has been
changed to the New Purchase Date and that his or her option will be exercised
automatically on the New Purchase Date, unless prior to such date he or she has
withdrawn from the Offering Period as provided in Section 10 hereof. For
purposes of this paragraph, an option granted under the Plan shall be deemed to
have been assumed or substituted if, following the sale of assets or merger, the
option confers the right to purchase, for each share of Common Stock subject to
the option immediately prior to the sale of assets or merger, the consideration
(whether stock, cash or other securities or property) received in the sale of
assets or merger by holders of Common Stock for each share of Common Stock held
on the effective date of the transaction (and if such holders were offered a
choice of consideration, the type of consideration chosen by the holders of the
majority of the outstanding shares of Common Stock); provided, however, that if
such consideration received in the sale of assets or merger was not solely
common stock of the successor corporation or its parent (as defined in Section
424(e) of the Code), the Board may, with the consent of the successor
corporation and the participant, provide for the consideration to be received
upon exercise of the option to be solely common stock of the successor
corporation or its parent equal in fair market value to the per share
consideration received by holders of Common Stock in the sale of assets or
merger.
19. AMENDMENT OR TERMINATION.
a) The Board may at any time terminate or amend the Plan. Except as
provided in Section 19, no such termination may affect options previously
granted, nor may an amendment make any change in any option theretofore granted
which adversely affects the rights of any participant; provided, that no shares
may be issued or sold pursuant to any amendment increasing the maximum number of
shares issuable under the Plan unless the stockholders of the Company have
approved the amendment within 12 months of its adoption by the Board. If such
stockholder approval is not obtained within such 12-month period, the amendment
shall be void and of no force or effect and the amounts withheld from Employees
with respect to such increased shares shall be returned to them. In addition, to
the extent necessary to comply with Rule 16b-3 under the Exchange Act, or under
Section 423 of the Code (or any successor rule or provision or any applicable
law or regulation), the Company shall obtain stockholder approval in such a
manner and to such a degree as so required.
b) Without stockholder approval and without regard to whether any
participant rights may be considered to have been adversely affected, the Board
(or its committee) shall be entitled to change the Offering Periods and Purchase
Periods, limit the frequency and/or number of changes in the amount withheld
during an Offering Period, establish the exchange ratio applicable to amounts
withheld in currency other than U.S. dollars, permit payroll withholding in
excess of the amount designated by a participant in order to adjust for delays
or mistakes in the Company's processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or accounting
and crediting procedures to ensure that amounts applied toward the purchase of
Common Stock for each participant properly correspond with amounts withheld from
the participant's Compensation, and establish such other limitations or
procedures as the Board (or its committee) determines in its sole discretion as
advisable which are consistent with the Plan.
20. NOTICES. All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
21. CONDITIONS UPON ISSUANCE OF SHARES.
a) Shares shall not be issued with respect to an option unless the exercise
of such option and the issuance and delivery of such shares pursuant thereto
shall comply with all applicable provisions of law, domestic or foreign,
including, without limitation, the Securities Act of 1933, as amended, the
Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of The Nasdaq National Market or any stock exchange upon which the
shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
b) As a condition of the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
c) Each participant agrees, by enrolling in the Plan, to promptly give the
Company prior written notice of any withdrawal of shares held in the
participant's account established under Section 5(c), or any disposition of
shares purchased under the Plan, where such withdrawal or disposition occurs
within two (2) years after the date of grant of the option pursuant to which
such shares were purchased, provided that any such withdrawal or disposition
shall be subject to Section 21(d).
d) Prior to the participant's termination of employment with the Company, a
participant may withdraw some or all of the whole shares of Common Stock held in
the participant's account established under Section 5(c), provided that, unless
the Board or the committee administering the Plan otherwise permits in its sole
discretion, each participant agrees, by enrolling in the Plan, that he or she
may not withdraw any shares of Common Stock purchased under the Plan until six
(6) months have expired following the Purchase Date on which such shares were
purchased.
22. TERM OF PLAN; EFFECTIVE DATE. The Plan shall become effective upon the
earlier to occur of its adoption by the Board or its approval by the
stockholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 19 hereof. However, no shares of
Common Stock may be issued or sold until the stockholders of the Company have
approved the Plan within 12 months of its adoption by the Board. If such
stockholder approval is not obtained within such 12-month period, the Plan shall
be void and of no force or effect and the amounts withheld from Employees shall
be returned to them.
23. ADDITIONAL RESTRICTIONS OF RULE 16B-3. The terms and conditions of
options granted hereunder to, and the purchase of shares by, persons subject to
Section 16 of the Exchange Act shall comply with the applicable provisions of
Rule 16b-3. This plan shall be deemed to contain, and such options shall
contain, and the shares issued upon exercise thereof shall be subject to, such
additional conditions and restrictions as may be required by Rule 16b-3 to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
Exhibit 5.1
[Express Scripts, Inc. Letterhead]
December 21, 1998
Express Scripts, Inc.
14000 Riverport Drive
Maryland Heights, Missouri 63043
Ladies and Gentlemen:
I am Senior Vice President of Administration, General Counsel and Secretary
of Express Scripts, Inc., a Delaware corporation (the "Company"), and in such
capacity I am familiar with the Registration Statement on Form S-8 to which this
opinion is filed as an exhibit (the "Registration Statement"), which registers
under the Securities Act of 1933, as amended (the "Securities Act"), 250,000
shares of Class A Common Stock, par value $0.01, of the Company (the "Shares")
reserved for issuance pursuant to the Express Scripts, Inc. Employee Stock
Purchase Plan (the "Plan").
I have examined originals or copies, certified or otherwise, identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as I deemed necessary for the purposes of the
opinion expressed herein. I have assumed (i) the genuineness of all signatures
on all documents examined by me, (ii) the authenticity of all documents
submitted to me as originals, (iii) the conformity to authentic originals of all
documents submitted to me as certified or photostatic copies, and (iv) the due
authorization, execution and delivery of all documents.
On the basis of the foregoing, I am of the opinion that when the
Registration Statement, including any amendments thereto, shall have become
effective under the Securities Act, and the Shares have been issued in
accordance with the terms of the Plan, then the Shares will be legally issued,
fully paid and nonassessable.
This opinion is not rendered with respect to any laws other than federal
laws and the General Corporation Law of the State of Delaware. I do not assume
any duty to update this opinion with respect to changes of law or fact occurring
after the date hereof.
I consent to the filing of this opinion as an exhibit to the Registration
Statement. I also consent to your filing copies of this opinion as an exhibit to
the Registration Statement with such agencies of such states as you deem
necessary in the course of complying with the laws of such states regarding the
offering and sale of the Shares. In giving this consent, I do not admit that I
am in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
/S/ Thomas M. Boudreau
Thomas M. Boudreau
Senior Vice President of
Administration, General Counsel
and Secretary
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of:
- our report dated February 6, 1998, except for Note 13, which is as of
February 20, 1998, appearing on page 25 of Express Scripts, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1997; and
- our report dated April 30, 1998, on our audits of the combined financial
statements of Value Health Pharmacy Benefit Management as of December 31, 1996,
and for the years ended December 31, 1996 , and 1995, appearing on page 24 of
Express Scripts, Inc.'s Form 8-K/A Amendment No. 1, dated June 12, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
St. Louis, Missouri
December 23, 1998
Exhibit 23.2
Consent of Ernst & Young LLP
We consent to the incorporation by reference in this Registration Statement
on form S-8 pertaining to the Express Scripts, Inc. Employee Stock Purchase Plan
of our report dated June 4, 1998, with respect to the combined financial
statements of Value Health Pharmacy Benefit Management included in Express
Scripts, Inc.'s Current Report on Form 8-K/A, dated June 12, 1998, filed with
the Securities & Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
December 23, 1998
Exhibit 23.3
Consent of Ernst & Young LLP
We consent to the incorporation by reference in this Registration Statement
on Form S-8 pertaining to the Express Scripts, Inc. Employee Stock Purchase Plan
of our report dated June 1, 1998, with respect to the financial statements of
Managed Prescription Network, Inc. d/b/a Columbia Pharmacy Solutions included in
Express Scripts, Inc.'s Current Report on Form 8-K/A dated June 12, 1998, filed
with the Securities & Exchange Commission.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
December 23, 1998
