As filed with the Securities and Exchange Commission
on August 9, 2000 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)
13900 Riverport Drive
Maryland Heights, Missouri 63043
(Address, including zip code, of principal executive offices)
EXPRESS SCRIPTS, INC. 2000 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Thomas M. Boudreau, Esq.
Senior Vice President, General Counsel and Secretary
Express Scripts, Inc.
13900 Riverport Drive, Maryland Heights, Missouri 63043
(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 2,000,000 shares(2) $68.46875 $136,937,500 $36,151.50
===============================================================================
(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 August 8, 2000.
(2) This Registration Statement includes 2,000,000 shares of Class A Common
Stock, representing a portion of the additional shares as are issuable pursuant
to automatic increase provisions, including an "evergreen" provision, and also
covers such additional shares of Class A Common Stock as may be issuable
pursuant to antidilution provisions of the Express Scripts, Inc. 2000 Long-Term
Incentive Plan.
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 under File No. 000-20199:
(a) Annual Report on Form 10-K for the year ended December 31, 1999.
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 2000.
(c) Current Report on Form 8-K dated February 2, 2000, and filed
February 10, 2000; Current Report on Form 8-K dated February 10, 2000, and filed
February 10, 2000; Current Report on Form 8-K dated March 2, 2000 and filed
March 3, 2000; Current Report on Form 8-K dated April 21, 2000, and filed April
24, 2000; Current Report on Form 8-K, dated June 22, 2000 and filed June 23,
2000; Current Report on Form 8-K, dated July 20, 2000, and filed July 21, 2000.
(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 August 9, 2000, 6,680 shares of the Class A Common Stock, options to
purchase 87,300 shares of Class A Common Stock, and 270 phantom stock units
convertible into shares of Class A Common Stock under the Company's Executive
Deferred Compensation Plan.
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. The Company also maintains
excess D&O coverage for certain expenses and liabilities of the Company and its
directors and officers while acting in their capacity as such.
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.
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 August 9,
2000.
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, Thomas M. Boudreau and Keith J. Ebling, 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 August 9, 2000
------------------------ Officer and Director
Barrett A. Toan
/s/ George Paz Senior Vice President and Chief August 9, 2000
------------------------ Financial Officer (Principal
George Paz Financial Officer)
/s/ Joseph W. Plum Vice President and Chief August 9, 2000
------------------------ Accounting Officer (Principal)
Joseph W. Plum Accounting Officer)
/s/ Howard I. Atkins Director August 9, 2000
------------------------
Howard I. Atkins
/s/ Stuart L. Bascomb Director August 9, 2000
------------------------
Stuart L. Bascomb
/s/ Gary G. Benanav Director August 9, 2000
------------------------
Gary G. Benanav
/s/ Frank J. Borelli Director August 9, 2000
------------------------
Frank J. Borelli
Director August 9, 2000
------------------------
Judith E. Campbell
/s/ Barbara B. Hill Director August 9, 2000
------------------------
Barbara B. Hill
/s/Richard M. Kernan, Jr. Director August 9, 2000
-------------------------
Richard M. Kernan, Jr.
Director August 9, 2000
-------------------------
Richard A. Norling
/s/ Frederick J. Sievert Director August 9, 2000
-------------------------
Frederick J. Sievert
/s/ Stephen N. Steinig Director August 9, 2000
-------------------------
Stephen N. Steinig
/s/ Seymour Sternberg Director August 9, 2000
-------------------------
Seymour Sternberg
/s/ Howard L. Waltman Director August 9, 2000
-------------------------
Howard L. Waltman
/s/ Gary E. Wendlant Director August 9, 2000
-------------------------
Gary E. Wendlant
/s/ Norman Zachary Director August 9, 2000
-------------------------
Norman Zachary
EXPRESS SCRIPTS, INC.
EXHIBIT INDEX
Exhibit
Number Description
4.1 Certificate of Incorporation, as amended, incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on
Form 10-Q for the quarter ending June 30, 1999
4.2 Second Amended and Restated Bylaws, incorporated by reference to
Exhibit 3.3 to the Company's Quarterly Report on Form 10-Q for
the quarter ending September 30, 1998
4.3 Express Scripts, Inc. 2000 Long-Term Incentive Plan
5.1 Opinion of Thomas M. Boudreau, Esq., Senior Vice President,
General Counsel and Secretary of the Company
23.1 Consent of Price WaterhouseCoopers LLP
23.2 Consent of Thomas M. Boudreau, Esq. (included in Exhibit 5.1)
24.1 Power of Attorney (included in Signature Page)
