-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HxxGSedx6UICSty2aU2smbxoCjHDw+gpEEHPDgHsDIrr287GrRxAn2nNPG2NZyqR PWSd1bsogfDty/ty3mbNIw== 0000885721-99-000002.txt : 19990217 0000885721-99-000002.hdr.sgml : 19990217 ACCESSION NUMBER: 0000885721-99-000002 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19990216 EFFECTIVENESS DATE: 19990216 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EXPRESS SCRIPTS INC CENTRAL INDEX KEY: 0000885721 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SPECIALTY OUTPATIENT FACILITIES, NEC [8093] IRS NUMBER: 431420563 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-72441 FILM NUMBER: 99543173 BUSINESS ADDRESS: STREET 1: 14000 RIVERPORT DR CITY: ST LOUIS STATE: MO ZIP: 63043 BUSINESS PHONE: 3147701666 MAIL ADDRESS: STREET 1: 14000 RIVERPORT DRIVE CITY: MARYLAND HEIGHTS STATE: MO ZIP: 63102-2750 S-8 1 As Filed with the Securities and Exchange Commission on February 16, 1999 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 Incorporation or Organization) Identification No.) 14000 RIVERPORT DRIVE MARYLAND HEIGHTS, MISSOURI 63043 (314) 770-1666 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) EXPRESS SCRIPTS, INC. EXECUTIVE DEFERRED COMPENSATION 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, including zip code, and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------- PROPOSED ROPOSED TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT SECURITIES TO BE OFFERING AGGREGATE OF TO BE REGISTERED PER OFFERING REGISTRATION REGISTERED OBLIGATION(1) PRICE(1) FEE - ------------------------------------------------------------------------------- Deferred Compensation Obligations(2) $8,000,000 100% $8,000,000 $2,224 - ------------------------------------------------------------------------------- Class A Common Stock, par value $0.01 per share 50,000 shares(3) $70.25(4) $3,512,500 $976.48 - ------------------------------------------------------------------------------- (1) Estimated solely for the purpose of determining the registration fee. (2) The Deferred Compensation Obligations are unsecured obligations of Express Scripts, Inc. to pay deferred compensation in the future in accordance with the terms of the Express Scripts, Inc. Executive Deferred Compensation Plan (the "Plan"). (3) Includes such additional shares of Class A common Stock as may be issuable pursuant to antidilution provisions of the Plan. (4) Based upon the average of the high and low market prices of the Class A Common Stock on February 12, 1999.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. Express Scripts, Inc. (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents: (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 Registrant'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 Registrant 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 by reference herein modifies or supersedes such statement. ITEM 4. DESCRIPTION OF SECURITIES. The following description of the Deferred Compensation Obligations registered hereunder is qualified by reference to the Express Scripts, Inc. Executive Deferred Compensation Plan (the "Plan"). A copy of the Plan is filed as Exhibit 4.1 to this Registration Statement. The Deferred Compensation Obligations (the "Obligations") will be unsecured general obligations of the Registrant to pay the deferred compensation of and Registrant contributions to eligible senior executives and vice-president level executives of the Registrant and its subsidiaries in the future in accordance with the terms of the Plan. The Obligations will rank equally with other unsecured and unsubordinated indebtedness of the Registrant from time to time outstanding. The amount of compensation to be deferred by each Plan participant will be determined in accordance with the Plan based on elections by the participant. The Registrant will establish compensation account(s) on behalf of each participant, to which the Registrant will credit any deferred compensation and Registrant contributions in accordance with the Plan. The compensation account(s) will be credited (or debited) with income (or loss) based upon a hypothetical investment in one or more of the investment options available under the Plan, which includes a hypothetical investment in Class A Common Stock of the Registrant as well as one or more mutual funds, as chosen by each participant from a list of such investment options. A participant's deferred compensation will vest immediately; while the Registrant's contributions vest in varying percentages over a three year period in accordance with the Plan. Except for amounts invested in the Class A Common Stock fund, each compensation account will be payable in cash upon the participant's retirement, termination, death or other date(s) determined in accordance with the Plan. Amounts in a participant's compensation account(s) invested in the Class A Common Stock fund will be distributed in the form of whole shares of Class A Common Stock, with fractional shares paid in cash. Participants and their beneficiaries may not voluntarily or involuntarily transfer, alienate or assign their interests under the Plan, and such interests are not subject to attachment, execution, garnishment or other such equitable or legal process. The Committee of the Registrant's Board of Directors administering the Plan may amend, alter or terminate the Plan at any time without the prior approval of the Board of Directors; provided that, without the Board's approval, no amendment, modification or termination may materially increase the benefits accruing to participants under the Plan. ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL. Thomas M. Boudreau, Esq. , whose opinion is contained in Exhibit 5.1, owned, as of January 27, 1999, options to purchase 113,500 shares of the Registrant's 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 Registrant's Certificate of Incorporation provides that no director shall have any personal liability to the Registrant 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 Registrant 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 Registrant's Certificate of Incorporation entitles officers and directors of the Registrant 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 Registrant, 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 Registrant while New York Life, directly or indirectly, maintains voting control of the Registrant. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Registrant pursuant to such provisions , the Registrant 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 filed herewith. 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) 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 this Registration Statement or any material change to such information in this 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 this 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 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 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 January 27, 1999. 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 is 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 below by the following persons in the capacities and on the dates indicated. SIGNATURES TITLE DATE /s/ Barrett A. Toan President, Chief Executive January 27, 1999 Barrett A. Toan Officer and Director /s/ Geroge Paz Senior Vice President and January 27, 1999 George Paz Chief Financial Officer (Principal Financial Officer) /s/ Joseph W. Plum Vice President and Chief January 27, 1999 Joseph W. Plum Accounting Officer (Principal Accounting Officer) /s/ Howard I. Atkins Howard I. Atkins Director January 27, 1999 Judith E. Campbell Director January __, 1999 Richard M. Kernan, Jr. Director January __, 1999 Richard A. Norling Director January __, 1999 /s/ Frederick J. Sievert Frederick J. Sievert Director January 27, 1999 /s/ Stephen N. Steining Stephen N. Steinig Director January 27, 1999 /s/ Seymour Sternberg Seymour Sternberg Director January 27, 1999 /s/ Howard L. Waltman Howard L. Waltman Director January 27, 1999 /s/ Norman Zachary Norman Zachary Director January 27, 1999 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION OF EXHIBITS 4.1 Express Scripts, Inc. Executive Deferred Compensation Plan. 5.1 Opinion of Thomas M. Boudreau, Esq., Senior Vice President of Administration,General Counsel and Secretary of the Registrant 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). EX-4.1 2 Exhibit 4.1 EXPRESS SCRIPTS, INC. EXECUTIVE DEFERRED COMPENSATION PLAN TABLE OF CONTENTS PAGE NO. 1. PURPOSE.................................................................1 2. DEFINITIONS.............................................................1 2.1 Accounting Date.....................................................1 2.2 Basic Company Credit................................................1 2.3 Beneficiary.........................................................1 2.4 Board...............................................................1 2.5 Business Day........................................................1 2.6 Committee...........................................................1 2.7 Common Stock........................................................2 2.8 Common Stock Fund...................................................2 2.9 Company.............................................................2 2.10 Company Credits....................................................2 2.11 Compensation.......................................................2 2.12 Compensation Account(s)............................................2 2.13 Credit Date........................................................2 2.14 Deferred Compensation..............................................2 2.15 Disability.........................................................3 2.16 Effective Date.....................................................3 2.17 Election...........................................................3 2.18 Employee...........................................................3 2.19 Exchange Act.......................................................3 2.20 Fair Market Value..................................................3 2.21 In-Service Account.................................................3 2.22 Participant........................................................4 2.23 Past Service Credit................................................4 2.24 Plan...............................................................4 2.25 Plan Year..........................................................4 2.26 Retirement.........................................................4 2.27 Retirement Account.................................................4 2.28 Service Year.......................................................4 2.29 Stock Unit(s)......................................................4 2.30 Termination........................................................5 3. ADMINISTRATION..........................................................5 4. ELIGIBILITY.............................................................5 5. PARTICIPANT ACCOUNTS....................................................5 6. ELECTION TO PARTICIPATE.................................................6 6.1 In General..........................................................6 6.2 Investment Alternatives For Existing Balances.......................6 7. COMPANY CREDITS.........................................................6 7.1 Vesting.............................................................6 7.2 Forfeiture..........................................................7 8. DISTRIBUTION............................................................7 8.1 Retirement Account..................................................7 8.2 In-Service Account..................................................7 8.3 Termination.........................................................8 8.4 Death...............................................................8 8.5 Form of Distribution................................................8 9. FINANCIAL HARDSHIP......................................................8 10. BENEFICIARY DESIGNATION................................................8 11. UNSECURED GENERAL CREDITOR STATUS OF EMPLOYEE..........................9 12. SHARES; ADJUSTMENTS IN EVENT OF CHANGES IN CAPITALIZATION..............9 13. INALIENABILITY OF BENEFITS.............................................9 14. GOVERNING LAW.........................................................10 15. AMENDMENTS............................................................10 EXPRESS SCRIPTS, INC. EXECUTIVE DEFERRED COMPENSATION PLAN 1. PURPOSE The purpose of this Express Scripts, Inc. Executive Deferred Compensation Plan (the "Plan") is to provide eligible key employees of the Company with an opportunity to defer compensation to be earned by them from the Company as a means of saving for retirement or other future purposes and to provide such employees with competitive retirement and capital accumulation benefits. In addition, the Plan is intended to provide eligible key employees additional incentive to remain employed by the Company and to attract certain executive-level employees. 2. DEFINITIONS The following definitions shall be applicable throughout the Plan: 2.1 ACCOUNTING DATE "Accounting Date" means each Business Day on which a calculation concerning a Participant's Compensation Account is performed, or as otherwise defined by the Committee. 2.2 BASIC COMPANY CREDIT "Basic Company Credit" means an amount, if any, credited to a Participant's Retirement Account as described in Section 7. 2.3 BENEFICIARY "Beneficiary" means the person or persons designated by the Participant in accordance with Section 10, or if no person or persons are so designated, the estate of a deceased Participant. 2.4 BOARD "Board" means the Board of Directors of Express Scripts, Inc. or its designee. 2.5 BUSINESS DAY "Business Day" means a day on which the New York Stock Exchange is open for trading activity. 2.6 COMMITTEE "Committee" means the Compensation Committee of the Board. 2.7 COMMON STOCK "Common Stock" means the Class A Common Stock, $0.01 par value, of Express Scripts, Inc. 2.8 COMMON STOCK FUND "Common Stock Fund" means that investment option, approved by the Committee, in which a Participant's Compensation Accounts may be deemed to be invested and may earn income (or incur losses) based on a hypothetical investment in Common Stock. 2.9 COMPANY "Company" means Express Scripts, Inc., its divisions, subsidiaries and affiliates. 2.10 COMPANY CREDITS "Company Credits" means amounts credited as either Basic Company Credits or Past Service Credits by the Company to Compensation Accounts, in the sole discretion of the Committee, pursuant to Section 7. 2.11 COMPENSATION "Compensation" means any employee compensation determined by the Committee to be properly deferrable under the Plan. 2.12 COMPENSATION ACCOUNT(S) "Compensation Account(s)" means the Retirement Account and/or the In-Service Accounts. 2.13 CREDIT DATE "Credit Date" means each date on which Deferred Compensation is credited to Compensation Accounts in accordance with rules prescribed by the Committee. 2.14 DEFERRED COMPENSATION "Deferred Compensation" means the Compensation elected by the Participant to be deferred pursuant to the Plan. 2.15 DISABILITY "Disability" means qualification for disability benefits under a long-term disability plan under which a Participant is covered and which is maintained by the Company. 2.15 EFFECTIVE DATE "Effective Date" means January 1, 1999. 2.16 ELECTION "Election" means a Participant's delivery of a written notice of election to the Committee or its designee electing to defer payment of a specified percentage of his or her Compensation (in accordance with rules prescribed by the Committee) either until Retirement, death or such other time as further permitted by the Committee. 2.17 EMPLOYEE "Employee" means an individual classified by the Committee as a full-time, regular salaried employee of the Company, its present and future subsidiary corporations as defined in Section 424 of the Internal Revenue Code of 1986, as amended, or its affiliates. 2.18 EXCHANGE ACT "Exchange Act" means the Securities Exchange Act of 1934, as amended. 2.19 FAIR MARKET VALUE "Fair Market Value" means, as of any specified date, the closing sales price of a share of Common Stock, as reported on the Nasdaq National Market on that date (or, if there are no sales on that date, the last preceding date on which there was a sale), or, in the event the Common Stock is listed on a stock exchange, the closing sales price of a share of Common Stock, as reported on such exchange on that date (or, if there are no sales on that date, the last preceding date on which there was a sale). In the absence of any listing of the Common Stock on the Nasdaq National Market or on any established stock exchange, Fair Market Value means the fair market value of the Common Stock on any specified date as determined in good faith by the Committee. 2.20 IN-SERVICE ACCOUNT "In-Service Account" means the account or accounts to which a Participant elects to contribute Deferred Compensation and from which, pursuant to Section 8.2, distributions are made. 2.21 PARTICIPANT "Participant" means an Employee selected by the Committee to participate in the Plan who has elected to defer payment of all or a portion of his or her Compensation under the Plan. 2.22 PAST SERVICE CREDIT "Past Service Credit" means an amount, if any, credited to a Participant's Retirement Account as described in Section 7. 2.23 PLAN "Plan" means this Express Scripts, Inc. Executive Deferred Compensation Plan, as amended from time to time. 2.24 PLAN YEAR "Plan Year" means the annual period commencing January 1 and ending the following December 31. 2.25 RETIREMENT "Retirement" means a Participant's termination of employment on or after age 57 or upon attaining age 55 with ten (10) Service Years in a position at least as senior as a senior vice-president. 2.26 RETIREMENT ACCOUNT "Retirement Account" means the account to which a Participant elects to contribute Deferred Compensation and to which Company Credits are made, and from which, pursuant to Section 8.1, distributions are made. 2.27 SERVICE YEAR "Service Year" means, as designated by the Committee, such year or portion thereof during which the services have been rendered by a Participant for which Compensation is payable. 2.28 STOCK UNIT(S) "Stock Unit(s)" means the share equivalents credited to the Common Stock Fund of a Participant's Compensation Account in accordance with Sections 5, 6 and 7. 2.29 TERMINATION "Termination" means termination of services as an Employee for any reason other than Retirement. In the event of a Participant's Disability, a Termination will be deemed to have occurred as of the date the Committee determines that a Participant has experienced a termination of services. 3. ADMINISTRATION Full power and authority to construe, interpret and administer the Plan shall be vested in the Committee. This power and authority includes, but is not limited to, selecting which Employees are eligible to participate in the Plan, selecting Compensation eligible for deferral, selecting investment indices, establishing the level of Company Credits (if any) to the Plan, establishing deferral terms and conditions, receiving and approving beneficiary designation forms, and adopting modifications, amendments and procedures as may be deemed necessary, appropriate or convenient by the Committee. Decisions of the Committee shall be final, conclusive and binding upon all parties. The Committee, in its sole discretion, may delegate day-to-day administration of the Plan to an employee or employees of the Company or to a third-party administrator. The Committee may also rely on outside counsel, independent accountants or other consultants or advisors for advice and assistance in fulfilling its administrative duties under the Plan. 4. ELIGIBILITY The Committee shall have the authority to select from senior and vice president-level executives those Employees who shall be eligible to participate in the Plan. 5. PARTICIPANT ACCOUNTS Upon a Participant's initial election to participate in the Plan, there shall be established a Retirement Account and an In-Service Account, as designated by the Participant, to which there shall be credited any Deferred Compensation as of each Credit Date. In addition, Company Credits, if any, made pursuant to Section 7 shall be allocated to a Participant's Retirement Account in accordance with rules prescribed by the Committee. Each such Compensation Account shall be credited (or debited) on each Accounting Date with income (or loss) based upon a hypothetical investment in any one or more of the investment options available under the Plan, as prescribed by the Committee for the particular Compensation credited, which may include a Common Stock Fund. If a Participant elects to invest all or any portion of his or her Compensation Account(s) in the Common Stock Fund, that portion of the Participant's Compensation Account(s) shall be credited on each Credit Date with Stock Units equal to the number of shares of Common Stock (including fractions of a share) that could have been purchased with the amount of such Deferred Compensation at the Fair Market Value on the Credit Date. As of any date for the payment of cash dividends on the Common Stock, the portion of the Participant's Compensation Account(s) invested in the Common Stock Fund as of the dividend record date shall be credited with additional Stock Units calculated by dividing (i) the product of (a) the dollar value of the dividend declared in respect of a share of Common Stock multiplied by (b) the number of Stock Units credited to the Participant's Compensation Account(s) as of the dividend record date by (ii) the Fair Market Value of a share of Common Stock on the dividend payment date. 6. ELECTION TO PARTICIPATE 6.1 IN GENERAL Any Employee selected by the Committee to participate in the Plan may elect to do so by delivering to the Committee or its designee an Election on a form prescribed by the Committee, designating the Compensation Account to which the Deferred Compensation is to be credited, electing the timing and form of distribution (if applicable), and setting forth the manner in which such Deferred Compensation shall be invested in accordance with Section 5. A Participant's initial Election must be filed within thirty (30) days of the date on which the Participant becomes eligible to participate in the Plan. Such initial Election shall only be effective as to the Plan Year to which such Election relates. A Participant must submit a new Election for each subsequent Plan Year in order to defer Compensation. Such subsequent Election must be filed at least thirty (30) days prior to the first day of the Plan Year to which such Election relates. An effective Election may not be revoked or modified except as otherwise determined by the Committee or as stated in the Plan. 6.2 INVESTMENT ALTERNATIVES FOR EXISTING BALANCES. A Participant may elect to change an existing selection as to the investment alternatives in effect with respect to an existing Compensation Account (in increments prescribed by the Committee) as often, and with such restrictions, as determined by the Committee. 7. COMPANY CREDITS In the sole discretion of the Committee, in a given Plan Year, the Company may credit a specified percentage of a Participant's Compensation to the Participant's Retirement Account as a Basic Company Credit. The Committee, in its sole discretion, may cause the Company to credit such Basic Company Credit for all or any portion of the participants in the Plan in such Plan Year. In addition, the Committee may cause the Company to credit a Past Service Credit to recognize past service as the Committee, in its sole discretion, deems appropriate. Such Basic Company Credit and Past Service Credit, if any, shall be credited to a Participant's Retirement Account and shall be subject to the limitations determined appropriate by the Committee, including the limitation contained in Section 8.3 and the limitations described below in this Section 7. 7.1 VESTING A Participant's Deferred Compensation shall be immediately one-hundred percent (100%) nonforfeitable upon being credited to such Participant's Retirement or In-Service Account. A Participant's Basic Company Credit for a Plan Year shall become nonforfeitable three (3) years after the end of the Plan Year to which such Basic Company Credit relates. A Participant's Past Service Credit shall be fifty-percent (50%) nonforfeitable upon being credited to his or her Retirement Account. The remaining fifty-percent (50%) shall become nonforfeitable as follows: one (1) year after the end of the Plan Year in which the Past Service Credit is credited to the Participant's Retirement Account, the Participant shall be one-third (1/3) vested in the remaining fifty percent (50%); two (2) years after the end of the Plan Year in which the Past Service Credit is credited to the Participant's Retirement Account, the Participant shall be two-thirds (2/3) vested in the remaining fifty percent (50%); and three (3) years after the end of the Plan Year in which the Past Service Credit is credited to the Participant's Retirement Account, the Participant shall be one-hundred percent (100%) vested in the remaining fifty percent (50%). Upon a Participant's termination of employment for any reason prior to attaining age 57, he or she shall forfeit any nonvested benefits. A Participant shall have a one-hundred percent (100%) nonforfeitable right to Basic Company Credits and Past Service Credits upon attaining age 57. 7.2 FORFEITURE Upon a Participant's Termination or Retirement, the Company reserves the right to withhold payment of a portion of a Participant's Retirement Account attributable to Basic Company Credits or Past Service Credits made under Section 7 (and earnings thereon) in the event the Committee determines that the Participant has violated the Company's standard noncompetition and nondisclosure agreement or any other employment agreement executed by the Participant, or otherwise acts against the interests of the Company, as determined by the Committee in its sole discretion. 8. DISTRIBUTION 8.1 RETIREMENT ACCOUNT In the event of a Participant's Retirement, the Participant's Retirement Account shall be distributed at the time and in the manner elected by the Participant in his or her initial Election. If no Election is made by a Participant as to the timing of distribution or form of payment of his or her Retirement Account, upon the Participant's Retirement such account shall be paid in a single lump sum. 8.2 IN-SERVICE ACCOUNT Deferred Compensation credited to a Participant's In-Service Account shall be distributed at the time and in the manner elected by the Participant in his or her Election. A Participant may not change the Election as to the distribution of Deferred Compensation in his or her In-Service Account except as otherwise permitted in Section 9. 8.3 TERMINATION In the event of a Participant's Termination, the Participant's Compensation Accounts shall be distributed in a single lump sum to such Participant as soon as administratively practicable following his or her Termination. 8.4 DEATH In the event of the Participant's death (a) while in the employment of the Company or (b) after the Participant's Termination but prior to the payment of such Participant's Compensation Accounts pursuant to Section 8.3, the Company shall pay the following amounts to the Participant's Beneficiary in a single lump sum: (1) the remaining amounts, if any, in a Participant's In-Service Account; and (2) the amounts in the Participant's Retirement Account. In the event of the Participant's death following Retirement, the Company shall pay the amount in the Participant's Retirement Account to the Participant's Beneficiary in the form and at the time elected by the Participant pursuant to Section 6.1. 8.5 FORM OF DISTRIBUTION Distribution of a Participant's Compensation Accounts shall be made in cash; provided that, any amounts in a Participant's Compensation Accounts invested in the Common Stock Fund shall be distributed to the Participant in wholes shares of Common Stock with fractional shares paid in cash. 9. FINANCIAL HARDSHIP Upon the written request of a Participant or a Participant's legal representative and a finding that continued deferral will result in an unforeseeable financial emergency to the Participant, the Committee (in its sole discretion) may authorize (a) the payment of all or a part of a Participant's Compensation Accounts representing Deferred Compensation and earnings thereon in a single lump sum prior to his or her ceasing to be a Participant, or (b) a Participant to cease contributing Deferred Compensation to the Plan during a Plan Year. It is intended that the Committee's determinations as to whether the Participant has suffered an "unforeseeable financial emergency" shall be made consistent with the requirements under Section 457(d) of the Internal Revenue Code of 1986, as amended. 10. BENEFICIARY DESIGNATION10. BENEFICIARY DESIGNATION A Participant may designate one or more persons (including a trust) to whom or to which payments are to be made if the Participant dies before receiving distribution of all amounts due under the Plan. A Participant may, at any time, elect to change the designation of a Beneficiary. A designation of Beneficiary will be effective only after the signed designation of Beneficiary is filed with the Committee or its designee while the Participant is alive and will cancel all designations of Beneficiary signed and filed earlier. If the Participant fails to designate a Beneficiary as provided above or if all of a Participant's Beneficiaries predecease him or her and he or she fails to designate a new Beneficiary, the remaining unpaid amounts shall be paid in one lump sum to the estate of such Participant. If all Beneficiaries of the Participant die after the Participant but before complete payment of all amounts due hereunder, the remaining unpaid amounts shall be paid in one lump sum to the estate of the last to die of such Beneficiaries. 11. UNSECURED GENERAL CREDITOR STATUS OF EMPLOYEE The payments to Participants and their Beneficiaries hereunder shall be made from the general corporate assets of the Company. No person shall have any interest in any such assets by virtue of the provisions of this Plan. The Company's obligation hereunder shall be an unfunded and unsecured promise to pay money in the future. To the extent that any person acquires a right to receive payments from the Company under the provisions hereof, such right shall be no greater than the right of any unsecured general creditor of the Company; no such person shall have nor acquire any legal or equitable right, interest or claim in or to any property or assets of the Company. Any accounts maintained under this Plan shall be hypothetical in nature and shall be maintained for bookkeeping purposes only. Neither the Plan nor any account shall hold any actual funds or assets. 12. SHARES; ADJUSTMENTS IN EVENT OF CHANGES IN CAPITALIZATION An aggregate of 50,000 shares of Common Stock have been initially allocated to the Plan and reserved for the distribution of Compensation Accounts as described in Section 8.5, subject to adjustment under this Section 12. The Company may, in its discretion, use shares held in the Treasury under this Plan in lieu of authorized but unissued shares of Common Stock. In the event of any change in the outstanding Common Stock of the Company by reason of any stock split, share dividend, recapitalization, merger, consolidation, reorganization, combination, or exchange or reclassification of shares, split-up, split-off, spin-off, liquidation or other similar change in capitalization, or any distribution to common shareholders other than cash dividends, the number or kind of shares or Stock Units that may be credited under the Plan shall be automatically adjusted so that the proportionate interest of the Participants shall be maintained as before the occurrence of such event. Such adjustment shall be conclusive and binding for all purposes of the Plan. 13. INALIENABILITY OF BENEFITS The interests of the Participants and their Beneficiaries under the Plan may not in any way be voluntarily or involuntarily transferred, alienated or assigned, nor subject to attachment, execution, garnishment or other such equitable or legal process. A Participant or Beneficiary cannot waive the provisions of this Section 13. 14. GOVERNING LAW The provisions of this plan shall be interpreted and construed in accordance with the laws of the State of Missouri, except to the extent preempted by Federal law. 15. AMENDMENTS The Committee may amend, alter or terminate this Plan at any time without the prior approval of the Board; provided, however, that the Committee may not, without approval by the Board, materially increase the benefits accruing to Participants under the Plan. IN WITNESS WHEREOF, the Express Scripts, Inc. Executive Deferred Compensation Plan is effective as of January 1, 1999. EXPRESS SCRIPTS, INC. By: /s/ Barrett Toan Title: President and Chief Executive Officer EX-5.1 3 Exhibit 5.1 [Express Scripts, Inc. Letterhead] January 27, 1999 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"), deferred compensation obligations (the "Obligations") and an aggregate of 50,000 shares of Class A Common Stock, par value $0.01, of the Company (the "Shares") reserved for issuance and to be issued from time to time pursuant to the Express Scripts, Inc. Executive Deferred Compensation 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 Obligations and the Shares have been issued in accordance with the terms of the Plan, then (i) the Obligations will be legally valid and binding obligations of the Company, except as may be limited by the applicability or effect of (a) any bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, or (b) general principles of equity, including, without limitation, concepts of reasonableness, materiality, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies, regardless of whether enforceability is considered in a proceeding in equity or at law, and (ii) the Shares will be legally issued, fully paid and nonassessable. This opinion is not rendered with respect to any laws other than (i) the laws of the State of Missouri with respect to the Obligations, (ii) the General Corporation Law of the State of Delaware, and (iii) applicable federal laws. 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 EX-23.1 4 Exhibit 23.1 Consent of PricewaterhouseCoopers LLP 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 February 12, 1999 EX-23.2 5 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. Executive Deferred Compensation 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 February 12, 1999 EX-23.3 6 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. Executive Deferred Compensation 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 February 12, 1999 -----END PRIVACY-ENHANCED MESSAGE-----