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EXHIBIT 4.3
ASSET ACQUISITION AGREEMENT
DATED AS OF OCTOBER 17, 2000
BETWEEN
NYLIFE HEALTHCARE MANAGEMENT, INC.,
EXPRESS SCRIPTS, INC.,
NYLIFE LLC,
AND
NEW YORK LIFE INSURANCE COMPANY
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ASSET ACQUISITION AGREEMENT
ASSET ACQUISITION AGREEMENT (this "AGREEMENT"), dated as of October 17,
2000, by and among NYLIFE HEALTHCARE MANAGEMENT, INC., a Delaware corporation
("NYLIFE"), EXPRESS SCRIPTS, INC., a Delaware corporation ("ESI"), NYLIFE LLC, a
Delaware limited liability company, and NEW YORK LIFE INSURANCE COMPANY, a
mutual insurance company organized under the laws of the State of New York
("NYL") (NYL, NYLIFE and NYLIFE LLC are collectively referred to herein as the
"NYLIFE COMPANIES"). Each of the NYLIFE Companies and ESI may be referred to
herein as a "PARTY" and any of such entities may be referred to herein as the
"PARTIES."
RECITALS
ESI desires to acquire and accept, and NYLIFE desires to grant and
transfer, the Acquired Assets (as hereinafter defined) in a transaction
qualifying as a "reorganization" under Section 368(a)(1)(C) of the Internal
Revenue Code of 1986, as amended.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS AND OTHER MATTERS
1.1 CERTAIN DEFINITIONS
"ACQUIRED ASSETS" shall mean 15,020,000 shares of Class B common stock,
$.01 par value per share of ESI, which constitutes all or substantially all of
the assets of NYLIFE.
"ACQUISITION CONSIDERATION" shall have the meaning ascribed to such
term in Section 2.2 to this Agreement.
"AGREEMENT" shall have the meaning ascribed to such term in the
introductory paragraph of this Agreement.
"CLASS A COMMON STOCK" shall have the meaning ascribed to such term in
Section 2.2 of this Agreement.
"CLOSING" shall have the meaning ascribed to such term in Section 3.1
of this Agreement.
"CLOSING DATE" shall have the meaning ascribed to such term in Section
3.1 of this Agreement.
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"CLOSING NOTICE" shall have the meaning ascribed to such term in
Section 3.1 of this Agreement.
"CONSENT" shall mean any consent, approval, authorization, waiver,
permit, grant, franchise, concession, agreement, license, exemption or order of,
registration, certificate, declaration or filing with, or report or notice to
any Person or Governmental Authority.
"CONTRACT" means any agreement, contract, obligation, promise or
undertaking (whether written or oral and whether express or implied) that is
legally binding.
"ESI" shall have the meaning ascribed to such term in the introductory
paragraph of this Agreement.
"EXCLUDED LIABILITIES" shall mean (i) any Tax liability relating to,
pertaining to, imposed on or arising out of either NYLIFE or the Acquired Assets
with respect to any period (or portion thereof) ending on or prior to the
Closing Date, (ii) any Taxes of any member of any affiliated, consolidated,
combined or unitary group of which NYLIFE was, at any time, a member incurred by
ESI or any of its affiliates under Treasury Regulation 1.1502-6 (or any similar
provision of state, local or foreign law), or as a transferee or successor, by
contract or otherwise, and (iii) any payments required to be made after the
Closing Date under any Tax sharing, Tax indemnity, Tax allocation or similar
contracts (whether or not written) to which NYLIFE was obligated, or was a
party, on or prior to the Closing Date.
"GOVERNMENTAL AUTHORITY" shall mean any (a) nation, state, county,
city, town, village, district or other jurisdiction of any nature; (b) federal,
state, local, municipal, foreign or other government; (c) governmental or
quasi-governmental authority of any nature (including any governmental agency,
branch, department, official, or entity and any court or other tribunal); (d)
multi-national organization or body; or (e) body exercising, or entitled to
exercise, any administrative, executive, judicial, legislative, police,
regulatory or taxing authority or power of any nature.
"LEGAL REQUIREMENT" means any federal, state, local, municipal,
foreign, international, multinational, or other administrative order,
constitution, law, ordinance, principle of common law, regulation, statute or
treaty.
"LIEN" shall mean any lien, encumbrance, hypothecation, right of
others, proxy, voting trust or similar arrangement, pledge, security interest,
collateral security agreement, limitations on voting rights, limitations on
rights of ownership filed with any Governmental Authority, claim, charge,
equities, mortgage, pledge, objection, title defect, title retention agreement,
option, restrictive covenant, restriction on transfer, right of first refusal,
right of first offer, statutory or contractual preemptive right or any
comparable interest or right created by or arising under any Legal Requirement,
of any nature whatsoever.
"NYL" shall have the meaning ascribed to such term in the introductory
paragraph of this Agreement.
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"NYLIFE" shall have the meaning ascribed to such term in the
introductory paragraph of this Agreement.
"NYLIFE COMPANIES" shall have the meaning ascribed to such term in the
introductory paragraph of this Agreement.
"PERSON" shall mean any natural person, company, corporation, limited
liability company, association, partnership, organization, business, firm, joint
venture, trust, unincorporated organization or any other entity or organization.
"RECEIPT" shall mean a Receipt, dated the Closing Date, executed by
each of ESI and NYLIFE, in substantially the form attached as Exhibit A hereto.
"RELATED AGREEMENTS" shall mean the Receipt and any other agreements,
instruments or certificates delivered hereunder or in connection with the
transactions contemplated hereby.
"STOCKHOLDER AGREEMENT" shall mean the Stockholder and Registration
Rights Agreement, dated as of October 6, 2000, between ESI and New York Life
Insurance Company, as amended from time to time.
"TAX" OR "TAXES" shall mean all taxes of any kind, including those on
or measured by or referred to as income, gross receipts, sales, use ad valorem,
franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, value added, property or windfall profits
taxes, customs, duties or similar fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additional to tax or
additional amounts imposed by any Governmental Authority, domestic or foreign.
"TAX RETURN" shall mean any return, report, or statement required to be
filed with any Governmental Authority with respect to Taxes.
ARTICLE II
ACQUISITION OF ASSETS
2.1 ACQUISITION OF ASSETS
Upon the terms and subject to the conditions set forth herein, in
exchange for the Acquisition Consideration, NYLIFE agrees to grant, convey,
assign, transfer and deliver to ESI on the Closing Date, and ESI agrees to
acquire and accept from NYLIFE on the Closing Date, all right, title and
interest of NYLIFE in, to and under the Acquired Assets. For the avoidance of
doubt, it is also agreed that NYLIFE LLC will retain, and ESI shall not assume,
the Excluded Liabilities.
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2.2 PAYMENT OF ACQUISITION CONSIDERATION
The acquisition consideration for the Acquired Assets is 15,020,000
shares of the Class A common stock, $.01 par value per share ("CLASS A COMMON
STOCK"), of ESI (the "ACQUISITION CONSIDERATION"). The Acquisition Consideration
shall be issued to NYLIFE in one or more stock certificates at the Closing.
ARTICLE III
CLOSING
3.1 CLOSING
Subject to the satisfaction of the conditions set forth in Article V,
the closing of the transactions contemplated hereby (the "CLOSING") shall take
place at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 at 9:00 a.m. (New York time) (or such other place and time as may be
specified by NYLIFE) on the date (the "CLOSING DATE") specified in a written
notice (the "CLOSING NOTICE") delivered by NYLIFE to ESI at the facsimile number
specified on the signature page hereto which Closing Date may be the date of the
Closing Notice.
3.2 DELIVERY OBLIGATIONS OF NYLIFE
At the Closing, NYLIFE shall deliver to ESI: (i) the Acquired Assets,
duly endorsed in blank, in form satisfactory to ESI and with all required stock
transfer tax stamps attached or, if applicable, an affidavit of indemnity and
loss relating to the Acquired Assets; and (ii) the Receipt, executed by a duly
authorized officer on behalf of NYLIFE.
3.3 DELIVERY OBLIGATIONS OF ESI
At the Closing, ESI shall deliver to NYLIFE: (i) stock certificate(s)
representing the Acquisition Consideration registered in the name of NYLIFE; and
(ii) the Receipt, executed by a duly authorized officer on behalf of ESI.
3.4 AMENDMENT OF STOCKHOLDER AGREEMENT AND RELATED MATTERS
Automatically, effective at the Closing, New York Life Insurance
Company and the Company hereby amend the Stockholder Agreement as follows: (i)
to delete Section 2.3 thereof in its entirety; (ii) to amend and restate the
third and fourth paragraphs under the caption "RECITALS" of the Stockholders
Agreement to read in their entirety as follows:
"The Company, at the request of Parent, intends to prepare and
file with the SEC (as defined below) a registration statement
relating to the public offering (the "Stock Offering") of up
to 6,900,000 shares of Class A Common Stock, to be acquired by
the Stockholder in accordance with
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the terms of the Asset Acquisition Agreement, dated as of
October 17, 2000 (the "Asset Purchase Agreement"), among
NYLIFE HealthCare Management, Inc., NYLIFE LLC, the Company
and Parent).
Parent intends to prepare and file, or cause to be prepared
and filed, with the SEC a registration statement relating to
the public offering (the "Trust Offering") by the Express
Scripts Automatic Exchange Security Trust (the "Trust") of
securities which may be exchanged by the Trust for, among
other things, cash or shares of Class A Common Stock."
; (iii) to amend the fifth paragraph under the caption "RECITALS" of the
Stockholder Agreement by adding words "the Retained Stock (as defined below)"
immediately following the word "own" and deleting the remainder of such
paragraph; (iv) to amend and restate the definition of "Retained Stock" in
Section 1.1 of the Stockholder Agreement to read in its entirety as follows:
"Retained Stock" means the shares of Class A Common Stock
included in the Acquisition Consideration (as defined in the
Asset Purchase Agreement) other than the Trust Stock and the
shares of Class A Common Stock sold by the Parent Group in the
Stock Offering, plus (from and after the date of the
termination of the Trust) the shares of Trust Stock in excess
of the number of shares of Trust Stock necessary to settle the
Parent Group's delivery obligations pursuant to the purchase
agreement entered into in connection with the Trust Offering
(whether or not the Trust Stock is used to settle such
obligations); provided that any such excess shares of Trust
Stock are released from the collateral arrangements entered
into by Parent or any other member of the Parent Group in
connection with the Trust Offering. References herein to
numbers of shares of Retained Stock shall be appropriately
adjusted to give effect to any stock split, reverse stock
split, stock dividend or similar recapitalization event, and
any merger, consolidation, exchange or other similar
reorganization or business combination involving the Company
occurring after the Closing."
; (v) to amend and restate the definition of "Trust Stock" in Section 1.1 of the
Stockholder Agreement to read in its entirety as follows:
"Trust Stock" means the maximum number of shares of Class A
Common Stock deliverable by the Parent Group pursuant to the
securities sold by the Trust in the Trust Offering."
; and (vi) to amend clause (iii) of Section 2.2(a) of the Stockholder Agreement
to delete the reference to "clause (ii)" and replace it with "clauses (ii) and
(iii)."
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 REPRESENTATIONS AND WARRANTIES OF NYLIFE
The NYLIFE Companies hereby, jointly and severally, represent, warrant
and covenant to ESI, with respect to the transactions contemplated herein that:
(a) Organization and Authority of the NYLIFE Companies.
(i) NYLIFE is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware and has the requisite corporate
power and authority to enter into and perform this
Agreement and the Related Agreements to which it is a
party and the transactions herein and therein
contemplated.
(ii) NYLIFE LLC is a limited liability company duly
organized, validly existing and in good standing
under the laws of the State of Delaware and has the
requisite limited liability company power and
authority to enter into and perform its obligations
under this Agreement and the Related Agreements to
which it is a party and the transactions herein and
therein contemplated.
(iii) NYL is a mutual insurance company duly organized,
validly existing and in good standing under the laws
of the State of New York and has the requisite
[mutual insurance company] power and authority to
enter into and perform its obligations under this
Agreement and the Related Agreements to which it is a
party and the transactions herein and therein
contemplated.
(b) Authorization of Agreement. The execution, delivery and performance
by each of the NYLIFE Companies of this Agreement and the Related Agreements to
which it is a party have been duly authorized by all requisite corporate,
limited liability company or mutual insurance company action, as the case may
be. This Agreement and the Related Agreements to which it is a party have been
duly executed and delivered by each of the NYLIFE Companies and constitute
legal, valid and binding obligations of each of the NYLIFE Companies enforceable
against each of the NYLIFE Companies in accordance with their respective terms,
except as may be limited by bankruptcy or similar laws affecting creditors'
rights generally and general principles of equity.
(c) No Conflicts. The execution, delivery and performance of this
Agreement and the Related Agreements to which it is a party by each of the
NYLIFE Companies do not violate, breach, conflict with, contravene or cause a
default under: (i) the respective organization document of the NYLIFE Companies;
(ii) any Contract to which any of the NYLIFE Companies is a party or by which it
or its property or any of the Acquired Assets is bound; or (iii) any judicial,
administrative or regulatory order, judgment or decree or arbitration award to
which any of the NYLIFE Companies is a party or by which it or its property or
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any of the Acquired Assets is bound. No Consent from any Governmental Authority
or any other Person is required in connection with the execution, delivery or
performance by any of the NYLIFE Companies of this Agreement or the Related
Agreements to which it is a party.
(d) No Liens. Upon the consummation of the transactions contemplated by
this Agreement and the Related Agreements, ESI shall acquire good and valid
title to all of the Acquired Assets, free and clear of all Liens.
(e) No Brokers. Neither of the NYLIFE Companies has incurred any
obligation or liability, contingent or otherwise, for brokers' or finders' fees
or commissions in connection with the transactions contemplated by this
Agreement.
(f) Acquired Assets. The Acquired Assets are the only shares of Class B
common stock, $.01 par value per share, of ESI held by the NYLIFE Companies and
any other direct or indirect subsidiary of NYL.
(g) No Other Representations and Warranties. Except as set forth in
this Article III, neither of the NYLIFE Companies makes representations or
warranties whether express or implied.
4.2 REPRESENTATIONS AND WARRANTIES OF ESI
ESI hereby represents, warrants and covenants to the NYLIFE Companies,
with respect to the transactions contemplated herein that:
(a) Organization and Authority of ESI. ESI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to enter into and perform
this Agreement and the Related Agreements to which it is a party and the
transactions herein and therein contemplated.
(b) Authorization of Agreement. The execution, delivery and performance
by ESI of this Agreement and the Related Agreements to which it is a party have
been duly authorized by all requisite corporate action. This Agreement and the
Related Agreements to which it is a party have been duly executed and delivered
by ESI and constitute legal, valid and binding obligations of ESI enforceable
against ESI in accordance with their respective terms, except as may be limited
by bankruptcy or similar laws affecting creditors' rights generally and general
principles of equity.
(c) No Conflicts. The execution, delivery and performance of this
Agreement and the Related Agreements to which it is a party by ESI do not
violate, breach, conflict with, contravene or cause a default under: (i) the
certificate of incorporation or bylaws of ESI; (ii) any Contract to which ESI is
a party or by which it or its property is bound; or (iii) any judicial,
administrative or regulatory order, judgment or decree or arbitration award to
which ESI is a party or by which it or its property is bound. No Consent of any
Governmental Authority or any other Person is required in connection with the
execution, delivery or performance by ESI of this Agreement or the Related
Agreements.
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(d) Acquisition Consideration. When issued at the Closing, the shares
of Class A Common Stock comprising the Acquisition Consideration will be duly
authorized, validly issued, fully paid and nonassessable shares of Class A
Common Stock, and the issuance of such shares will not be subject to any
preemptive or similar rights. At the Closing, the Acquisition Consideration will
be acquired by NYLIFE free and clear of any Liens.
(e) No Brokers. ESI has not incurred any obligation or liability,
contingent or otherwise, for brokers' or finders' fees or commissions in
connection with the transactions contemplated by this Agreement.
(f) No Other Representations and Warranties. Except as set forth in
this Article IV, ESI makes no representations or warranties whether express or
implied.
4.3 TAX COVENANT
NYLIFE and ESI agree that this transaction, coupled with a subsequent
liquidation of NYLIFE, is intended to qualify as a "reorganization" under
Section 368(a)(1)(C) of the Internal Revenue Code of 1986, as amended, and that
neither of them will take any action that would prevent the transaction from so
qualifying or file any Tax Return that reports this transaction as other than
such a "reorganization", unless otherwise required by applicable law. None of
ESI (or any related party to ESI) have any plan or arrangement to acquire all or
any part of the Acquisition Consideration, other than purchases in the open
market pursuant to a stock repurchase plan of ESI which was announced before the
date of this Agreement.
4.4 NASDAQ LISTING
ESI agrees to take all actions required to cause the shares included in
the Acquisition Consideration to have been approved for inclusion in the Nasdaq
National Market on the Closing Date; provided that any such actions shall be at
the sole cost and expense of NYL (other than as contemplated by the Stockholder
Agreement).
ARTICLE V
CLOSING CONDITIONS
5.1 CONDITION TO THE OBLIGATIONS OF NYLIFE
The obligations of NYLIFE to consummate the transactions contemplated
by this Agreement are subject to the receipt of a certificate duly executed by
an authorized officer of ESI certifying that the representations and warranties
of ESI under this Agreement are true and correct in all material respects as of
the Closing Date or waiver of this condition by NYLIFE.
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5.2 CONDITION TO THE OBLIGATIONS OF ESI
The obligations of ESI to consummate the transactions contemplated by
this Agreement are subject to the receipt of a certificate duly executed by an
authorized officer of NYLIFE certifying that the representations and warranties
of NYLIFE under this Agreement are true and correct in all material respects as
of the Closing Date or waiver of this condition by ESI.
5.3 GENERAL
NYLIFE and ESI agree to deliver the certificates referred to in
Sections 5.1 and 5.2 at the Closing.
ARTICLE VI
INDEMNIFICATION
6.1 TAX INDEMNIFICATION OF ESI
(a) NYL and NYLIFE LLC jointly and severally covenant and agree to be
responsible for, defend, indemnify and hold harmless ESI from and against, and
to pay, (i) any Tax imposed on or with respect to ESI attributable to, arising
from or relating to the transactions contemplated by Article II of this
Agreement and (ii) attributable to, arising from or relating to the Excluded
Liabilities. If the payment of indemnification under this Section 6.1
("INDEMNITY CLAIM") gives rise to a currently realizable Tax Benefit (as defined
below) to ESI, the indemnity payment shall be reduced by the amount of the Tax
Benefit available to ESI. The net amount of any loss, liability, claim, damage,
expense or Tax for which indemnification is provided under this Section 6.1
shall be increased to take account of any net Tax cost incurred by ESI arising
from the receipt of indemnity payments hereunder. To the extent such Indemnity
Claim does not give rise to a currently realizable Tax Benefit, if the amount
with respect to which any Indemnity Claim is made gives rise to a subsequently
realized Tax Benefit to ESI, ESI shall refund to NYL or NYLIFE LLC, as
appropriate, the amount of such Tax Benefit when, as and if actually realized.
For the purposes of this Agreement, any subsequently realized Tax Benefit shall
be treated as though it were a reduction in the amount of the initial Indemnity
Claim, and the liabilities of the parties shall be redetermined as though both
occurred at or prior to the time of the indemnity payment. For purposes of this
Section 6.1, a "TAX BENEFIT" means an amount by which the Tax liability of ESI
is actually reduced plus any related interest received from the relevant
Governmental Authority. Where ESI has other losses, deductions, credits or items
available to it, the Tax Benefit from any losses, deductions, credits or items
relating to the Indemnity Claim shall be deemed to be realized last after any
other losses, deductions, credits or items are realized. For the purposes of
this Section 6.1, a Tax Benefit is "currently realizable" to the extent that
such Tax Benefit will be actually realized in the current taxable period or year
or in any Tax return with respect thereto (including through a carryback to a
prior taxable period) or in any taxable period or year prior to the date of the
Indemnity Claim. In the event that there should be a determination disallowing
the Tax
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Benefit, the indemnifying party shall be liable to refund to ESI the amount of
any related reduction previously allowed or payments previously made to the
indemnifying party pursuant to this Section 6.1. The amount of the refunded
reduction or payment shall be deemed a payment under this Section 6.1 of this
Agreement and thus shall be paid subject to any applicable reductions under this
Section 6.1.
(b) In the event that ESI receives a refund or credit of any Tax for
which NYLIFE LLC or NYL has made a payment pursuant to Section 6.1(a), then ESI
(i) shall promptly pay to NYLIFE LLC or NYL the amount of such refund (including
any interest received by ESI in respect of such refunded Tax), or (ii) shall pay
to NYLIFE LLC or NYL the amount of such credit at such time as such credit
actually reduces the Tax liability of ESI; provided, however, that ESI shall not
be required to pay to NYLIFE LLC or NYL any refund or credit of Taxes that
results from the carryback to any pre-Closing Date Tax period of any net
operating loss, capital loss or tax credit attributable to ESI. In the event
that any refund or credit of Taxes for which a payment has been made pursuant to
this Section 6.1(b) is subsequently reduced or disallowed, NYLIFE LLC or NYL
shall indemnify and hold harmless ESI for any Tax liability, including interest
and penalties, assessed against ESI by reason of such reduction or disallowance.
6.2 TAX CONTESTS
(a) If any claim for Tax is asserted by any Governmental Authority
against ESI that, if successful, would result in an Indemnity Claim the parties
hereto agree to abide by the following procedures in handling any such claim:
(i) Each party shall, upon receiving any notice of an
assertion of a claim for Taxes that would result in
an Indemnity Claim, notify the other party in writing
of such assertion of a claim for Taxes within a
reasonable period of time. In the event that notice
of such claim is not given to NYLIFE LLC or NYL
within a sufficient period of time or in reasonable
detail to apprise NYLIFE LLC or NYL of the nature of
the claim (in each instance taking into account the
facts and circumstances with respect to such claim),
NYLIFE LLC or NYL shall not be liable to ESI under
Section 6.1(a) for such claim to the extent, if any,
that the rights of NYLIFE LLC or NYL with respect to
such claim are actually materially prejudiced.
(ii) NYLIFE LLC or NYL shall control all proceedings taken
in connection with contesting any such claim. ESI
shall take such action in connection with contesting
such claim as NYLIFE LLC or NYL shall reasonably
request in writing from time to time; provided that
(A) within a reasonable period (or such earlier date
that any payment of Taxes is due by ESI) after the
notice described in Section 6.2(a)(i) has been
delivered to NYLIFE LLC or NYL, NYLIFE LLC or NYL
requests that such claim be contested; (B) NYLIFE LLC
and/or NYL shall have agreed to pay on an after-Tax
basis to ESI on demand all costs and expenses in
connection with
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contesting such claim (or appeal), including, without
limitation, reasonable attorneys' and accountants'
fees and disbursements; (C) if ESI is requested or
shall determine to pay the Tax claimed and xxx for a
refund, NYLIFE LLC or NYL shall have advanced to ESI,
on an interest-free basis (and at no additional tax
cost to ESI), the amount of such claim; (D) ESI is
allowed to participate in the contest of such claim
to the extent that the resolution could have a
material adverse effect on ESI, and (E) NYLIFE LLC or
NYL shall not settle or compromise such Indemnity
Claim without the prior written consent of ESI if the
settlement or compromise would have a material
adverse effect on ESI for a post-Closing period. In
the case of any such claim referred to above, ESI
shall give to NYLIFE LLC or NYL any information
reasonably requested by NYLIFE LLC or NYL relating to
such claim and otherwise shall cooperate with NYLIFE
LLC or NYL in good faith in order to contest
effectively any such claim.
(b) If, after actual receipt by ESI of an amount advanced by NYLIFE LLC
or NYL pursuant to clause C of Section 6.2(a)(ii), the extent of the liability
of ESI with respect to the indemnified matter shall be established, ESI shall
promptly pay to NYLIFE LLC or NYL all or the portion of any refund received by
or credited to ESI with respect to the indemnified matter (together with any
interest paid or credit thereon by the relevant Governmental Authority) reduced
by any liability for Taxes incurred by ESI in respect of such payment.
ARTICLE VII
TERMINATION
7.1 TERMINATION OF AGREEMENT
If the Closing shall not have occurred, this Agreement shall terminate
either on (x) at 11:59 p.m. (New York Time) on December 31, 2000, or (y) such
earlier date and time as NYLIFE may specify in a written notice delivered to
ESI.
ARTICLE VIII
MISCELLANEOUS
8.1 ENTIRE AGREEMENT; AMENDMENT
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This Agreement (together with the Exhibits hereto and Related
Agreements) constitutes the entire agreement between the Parties with respect to
the subject matter contained herein, supersedes all prior oral or written
agreements, commitments or understandings between the Parties with respect
thereto, and cannot be amended, supplemented or otherwise modified except in a
writing executed by each of the Parties.
8.2 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
8.3 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
8.4 SUCCESSORS AND ASSIGNS
This Agreement is intended for the exclusive benefit of the parties
hereto and their respective successors and assigns. Nothing contained in this
Agreement shall be construed as granting any rights or benefits in or to any
third party, and no person shall assert any rights as third-party beneficiary
hereunder.
8.5 CAPTIONS
The captions in this Agreement are for convenience of reference only
and shall not be given any effect in the interpretation of this Agreement.
8.6 FURTHER ASSURANCES
On or after the date hereof, NYLIFE and ESI hereby agree to promptly
execute, acknowledge and deliver any other assurances, instruments, agreements,
certificates or other documents and take any other action reasonably requested
by the other party hereto to effect the transactions contemplated hereby.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their officers or other duly authorized representatives as of the
date first above written.
EXPRESS SCRIPTS, INC.
By: /s/ Xxxxxx Xxx
-----------------------------------------
Name: Xxxxxx Xxx
Title: Senior Vice President and Chief
Financial Officer
Facsimile No.: 000-000-0000
-------------------------
NYLIFE HEALTHCARE
MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
NYLIFE LLC
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Chairman
NEW YORK LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Executive Vice President and
Chief Investment Officer
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EXHIBIT A
FORM OF RECEIPT
Reference is hereby made to that certain Asset Acquisition Agreement
(the "AGREEMENT"), dated as of the date hereof, between Express Scripts, Inc.
("ESI") NYLIFE HealthCare Management, Inc. ("NYLIFE"), NYLIFE LLC and New York
Life Insurance Company. Capitalized terms used but not defined herein shall have
the respective meanings ascribed to them in the Agreement.
ESI hereby acknowledges receipt, on the date hereof, of the Acquired
Assets referenced in Section 2.1 of the Agreement.
NYLIFE hereby acknowledges receipt from ESI of the Acquisition
Consideration.
Date: __________ __, 2000
EXPRESS SCRIPTS, INC.
By: /s/ Xxxxxx Xxx
------------------------------------
Name: Xxxxxx Xxx
Title: Senior vice President and
Chief Financial Officer
NYLIFE HEALTHCARE
MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
