1
Exhibit 2.k.(ii)
-------------------------------------------------------------------------------
PAYING AGENT AGREEMENT
Between
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
As Paying Agent,
and
EXPRESS SCRIPTS AUTOMATIC EXCHANGE SECURITY TRUST
----------------------
Dated as of November __, 2000
----------------------
-------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms...............................................1
Section 1.2. Interpretation..............................................2
ARTICLE II
PAYING AGENT
Section 2.1. Appointment of Paying Agent; Acceptance of Appointment......3
Section 2.2. Certificates and Notices....................................3
Section 2.3. Payments and Investments....................................3
Section 2.4. Instructions from Administrator.............................4
ARTICLE III
TRANSFER AGENT AND REGISTRAR
Section 3.1. Original Issue of Certificates..............................4
Section 3.2. Registry of Holders.........................................4
Section 3.3. Registration of Transfer of the Securities..................4
Section 3.4. Lost Certificates...........................................4
Section 3.5. Disposition of Canceled Certificates; Records...............4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRUST
Section 4.1. Representations and Warranties of the Trust.................5
-i-
3
ARTICLE V
DUTIES AND RIGHTS OF PAYING AGENT
Section 5.1. Duties......................................................6
Section 5.2. Conditions to the Duties of the Paying Agent................6
Section 5.3. Merger......................................................6
Section 5.4. Disclaimer..................................................7
Section 5.5. Compensation................................................7
Section 5.6. Indemnification.............................................7
ARTICLE VI
RESIGNATION AND REMOVAL OF THE PAYING AGENT
Section 6.1. Removal.....................................................7
Section 6.2. Resignation.................................................8
Section 6.3. Appointment of Successor....................................9
Section 6.4. Effectiveness of Resignation or Removal.....................9
Section 6.5. Acceptance by Successor.....................................9
Section 6.6. Survival....................................................9
ARTICLE VII
MISCELLANEOUS
Section 7.1. Term of Agreement...........................................9
Section 7.2. No Assumption of Liability.................................10
Section 7.3. Notices....................................................10
Section 7.4. Governing Law; Severability................................10
Section 7.5. Amendments; Waivers........................................10
Section 7.6. Non-Assignability..........................................11
Section 7.7. Provisions of Law to Control...............................11
Section 7.8. No Third Party Rights; Successors and Assigns..............11
Section 7.9. Counterparts...............................................11
-ii-
4
PAYING AGENT AGREEMENT
PAYING AGENT AGREEMENT, dated as of November __, 2000, between
ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability
company (the "Paying Agent"), and Express Scripts Automatic Exchange Security
Trust, a trust organized under the laws of the State of New York under and by
virtue of an Amended and Restated Trust Agreement, dated as of November __,
2000 (such trust and the trustees thereof acting in their capacity as such
being referred to in this Agreement as the "Trust").
WITNESSETH:
WHEREAS, the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940 (the
"Investment Company Act"), formed to purchase and hold certain U.S. treasury
securities (the "Treasury Securities"), to enter into and hold a forward
purchase contract (the "Contract") with an existing shareholder of Express
Scripts, Inc. (the "Company") and to issue $________ Trust Issued Automatic
Common Exchange Securities (the "Securities") to the public in accordance with
the terms and conditions of the Trust Agreement referred to below; and
WHEREAS, the Trust desires to engage the services of the Paying Agent
to assume certain duties and responsibilities as the transfer agent, registrar
and paying agent with respect to the Securities upon the terms and conditions
of this Agreement; and
WHEREAS, the Paying Agent is qualified and willing to assume such
duties and responsibilities, subject to the supervision of the Trustees, on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, the parties, intending to be bound, agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1. Defined Terms.
(a) Capitalized terms used and not otherwise defined in this
Agreement have the respective meanings specified in the Trust Agreement.
5
(b) As used in this Agreement, the following terms have the
following meanings:
"Agreement" means this Paying Agent Agreement.
"Company" has the meaning specified in the recitals to this Agreement.
"Contract" has the meaning specified in the recitals to this
Agreement.
"Investment Company Act" has the meaning specified in the recitals to
this Agreement.
"Paying Agent" has the meaning specified in the preamble to this
Agreement.
"Securities" has the meaning specified in the recitals to this
Agreement.
"Treasury Securities" has the meaning specified in the recitals to
this Agreement.
"Trust" has the meaning specified in the preamble to this Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of November __, 2000, constituting the Trust.
Section 1.2. Interpretation.
(a) When a reference is made in this Agreement to Articles,
Sections, Exhibits or Schedules, such reference is to Articles or Sections of,
or Exhibits or Schedules to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this
Agreement are for reference purposes only and are not part of this Agreement
and shall not be deemed to limit or otherwise affect any of the provisions of
this Agreement.
(c) Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
-2-
6
(d) Any reference to any statute, regulation or agreement is a
reference to such statute, regulation or agreement as supplemented or amended
from time to time.
ARTICLE II
PAYING AGENT
Section 2.1. Appointment of Paying Agent; Acceptance of
Appointment. The Trust hereby appoints the Paying Agent, and the Paying Agent
hereby accepts such appointment, to provide the services enumerated in this
Agreement. The Paying Agent agrees to act in accordance with its standard
procedures and the written instructions of the Administrator and the provisions
set forth in this Article II as Paying Agent with respect to the Securities.
Without limiting the generality of the foregoing, ChaseMellon Shareholder
Services, L.L.C., as Paying Agent, agrees that it shall establish and maintain
the Trust Account as provided in the Trust Agreement, subject to the provisions
of Section 2.3.
Section 2.2. Certificates and Notices. The Trustees shall
deliver, or cause to be delivered, to the Paying Agent the certificates and
notices required to be delivered to the Paying Agent pursuant to the Trust
Agreement, and the Paying Agent shall mail or publish such certificates or
notices as required by the Trust Agreement, but the Paying Agent shall have no
responsibility to confirm or verify the accuracy of certificates or notices of
the Trustees so delivered.
Section 2.3. Payments and Investments. The Paying Agent shall
make payments out of the Trust Account as provided for in Article III of the
Trust Agreement. The Paying Agent shall effect the transactions set forth in
Sections 2.3, 2.4, 2.5 and 8.3 of the Trust Agreement upon receipt of written
instructions to do so from the Administrator and shall invest monies on deposit
in the Trust Account in Temporary Investments in accordance with Section 3.5 of
the Trust Agreement. Except as otherwise specifically provided in this
Agreement or in the Trust Agreement, the Paying Agent shall not have the power
to sell, transfer or otherwise dispose of any Temporary Investment prior to the
maturity thereof, or to acquire additional Temporary Investments. The Paying
Agent shall hold any Temporary Investment to its maturity and shall apply the
proceeds thereof upon maturity to the payment of the next succeeding Quarterly
Distribution on the Securities. All such Temporary Investments shall be
selected from time to time by the Trustees or by the Administrator pursuant to
standing instructions from the Trustees to the Administrator, and the Paying
Agent shall have no liability to the Trust or any Holder or any other Person
with respect to the payment or performance of any such Temporary Investment.
-3-
7
Section 2.4. Instructions from Administrator. The Paying Agent
shall receive and execute all written instructions from the Administrator.
ARTICLE III
TRANSFER AGENT AND REGISTRAR
Section 3.1. Original Issue of Certificates. On the date the
Securities are originally issued and sold pursuant to the Underwriting
Agreement, certificates for the Securities shall be issued by the Trust, and,
at the request of the Trustees, registered in such names and such denominations
as the Underwriters shall have previously requested of the Trustees, executed
manually or in facsimile by the Managing Trustee and countersigned manually by
the Paying Agent. At no time shall the aggregate number of Securities
represented by such countersigned certificates exceed the number of then
outstanding Securities.
Section 3.2. Registry of Holders. The Paying Agent shall maintain
a registry of the Holders of the Securities. In case of any written request or
demand for the inspection of the registry of the Trust or any other books in
the possession of the Paying Agent, the Paying Agent will notify the Trustees
and secure instructions as to whether to permit or refuse such inspection;
provided, however, that the Paying Agent reserves the right to exhibit the
transfer books or other books to any Person if it is advised by its counsel
that its failure to do so would be unlawful.
Section 3.3. Registration of Transfer of the Securities. The
Paying Agent shall register Securities for transfer or exchange, and shall
countersign and deliver new certificates in the name of the designated
transferee or transferees, upon surrender of the old certificates in form
deemed by the Paying Agents properly endorsed for transfer with (a) all
necessary endorsers' signatures medallion guaranteed, (b) such assurance as the
Paying Agent shall deem necessary or appropriate to evidence the genuineness
and effectiveness of each necessary endorsement and (c) satisfactory evidence
of compliance with all applicable laws relating to the payment of taxes or
funds necessary for the payment of such taxes.
Section 3.4. Lost Certificates. The Paying Agent shall issue and
register replacement certificates for certificates represented to have been
destroyed, stolen or lost or for mutilated certificates, upon the receipt of
(a) evidence acceptable to it of the destruction, theft, loss or mutilation and
(b) a surety bond acceptable to the Paying Agent sufficient to indemnify it and
the Trustee hereunder. The Paying Agent may issue new certificates in exchange
for and upon the cancellation of mutilated certificates. Any
-4-
8
request by the Trustees to the Paying Agent to issue a replacement or new
certificate pursuant to this Section 3.4 shall be deemed to be a representation
and warranty by the Trust to the Paying Agent that such issuance will comply
with any applicable provisions of the law and the Trust Agreement and
resolutions of the Trustees.
Section 3.5. Disposition of Canceled Certificates; Records. The
Paying Agent shall retain certificates that have been canceled in transfer or
in exchange and accompanying documentation in accordance with applicable rules
and regulations of the Commission for six calendar years from the date of such
cancellation, and shall make such records available during this period at any
time, or from time to time, for reasonable periodic, special, or other
examinations by representatives of the Commission and the Board of Governors of
the Federal Reserve System. Thereafter such records shall not be destroyed by
the Paying Agent but will be safely stored for possible future reference. In
case of any request or demand for the inspection of the register of the Trust
or any other books in the possession of the Paying Agent, the Paying Agent will
notify the Trustees and seek to secure instructions as to permitting or
refusing such inspection; provided, however, that the Paying Agent reserves the
right to exhibit the register or other records to any person in case it is
advised by its counsel that its failure to do so would (i) be unlawful, or (ii)
expose it to liability, unless the Trustees shall have offered indemnification
satisfactory to the Paying Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRUST
Section 4.1. Representations and Warranties of the Trust. The
Trust represents and warrants to the Paying Agent that:
(a) the Trust is a validly existing trust under the laws of the
State of New York and the Trustees have full power under the Trust Agreement to
execute and deliver this Agreement on behalf of the Trust and to authorize,
create and issue the Securities;
(b) this Agreement has been duly and validly authorized, executed
and delivered by the Trust and constitutes the valid and binding agreement of
the Trust enforceable against the Trust in accordance with its terms, subject
as to such enforceability to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equitable principles;
-5-
9
(c) the form of the certificate evidencing the Securities
complies with all applicable laws of the State of New York;
(d) the Securities have been duly and validly authorized,
executed and delivered by the Trust and are validly issued;
(e) the offer and sale of the Securities has been registered
under the Securities Act and the Trust has been registered under the Investment
Company Act and no further action by or before any governmental body or
authority of the United States or of any state thereof is required in
connection with the execution and delivery of this Agreement or the issuance of
the Securities;
(f) the execution and delivery of this Agreement and the issuance
and delivery of the Securities do not and will not conflict with, violate or
result in a breach of, the terms, conditions or provisions of, or constitute a
default under, the Trust Agreement, any law or regulation, any order or decree
of any court or public authority having jurisdiction over the Trust, or any
mortgage, indenture, contract, agreement or undertaking to which the Trust is a
party or by which it is bound; and
(g) no taxes are payable upon or in respect of the execution of
this Agreement or the issuance of the Securities.
ARTICLE V
DUTIES AND RIGHTS OF PAYING AGENT
Section 5.1. Duties. The Paying Agent is acting solely as agent
for the Trust hereunder and owes no fiduciary duties to any other Person by
reason of this Agreement.
Section 5.2. Conditions to the Duties of the Paying Agent. The
provisions of Section 8.1(a) of the Collateral Agreement shall apply, mutatis
mutandis, to the Paying Agent in the performance of its duties hereunder as if
it were the Collateral Agent acting under the Collateral Agreement.
Section 5.3. Merger. Any corporation, association or limited
liability company into which the Paying Agent may be converted or merged or
with which it may be consolidated, or to which it may sell or transfer its
agency business and assets as a whole or substantially as a whole, or any
corporation, association or limited liability company resulting from any such
conversion, merger, consolidation, sale or transfer to
-6-
10
which it is a party, shall be and become the successor Paying Agent hereunder
without the execution or filing of any instrument or further act, deed or
conveyance on the part of any of the parties hereto, provided that such
corporation, association or limited liability company meets the requirements
set forth in the Trust Agreement, and provided further that the Trustees have
given their prior written consent to the Administrator with respect to any such
merger, conversion, consolidation, sale or transfer.
Section 5.4. Disclaimer. The Paying Agent makes no representation
as to (a) the first two recitals of this Agreement or (b) the validity or
adequacy of the Securities.
Section 5.5. Compensation. For all services to be rendered by the
Paying Agent pursuant to this Agreement, the Paying Agent shall receive only
such fees and expenses as shall be paid to it pursuant to the terms of the
Expense Agreement and the Indemnity Agreement and shall have no recourse to the
assets of the Trust for the payment of any such amounts.
Section 5.6. Indemnification. The Trust shall indemnify and hold
the Paying Agent harmless from and against any loss, damages, cost or expense
(including the costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements), liability or claim incurred by reason of
any inaccuracy in information furnished to the Paying Agent by the Trust, or
any act or omission in the course of, connected with or arising out of any
services to be rendered hereunder, provided that the Paying Agent shall not be
indemnified and held harmless from and against any such loss, damages, cost,
expense, liability or claim incurred by reason of its willful misfeasance, bad
faith or gross negligence in the performance of its duties, or its reckless
disregard of its duties and obligations hereunder. In no case will the Paying
Agent be liable for special, indirect, incidental or consequential loss or
damages of any kind whatsoever (including but not limited to lost profits),
even if the Paying Agent has been advised of the possibility of such damages.
ARTICLE VI
RESIGNATION AND REMOVAL OF THE PAYING AGENT
Section 6.1. Removal.
(a) Subject to Section 6.4, the Trust may remove the Paying Agent
by written notice at any time if any of the following events shall occur:
-7-
11
(i) if the Paying Agent shall violate any provision of
this Agreement, the Trust Agreement or the Investment Company Act and,
after notice of such violation, shall not cure such default within 30
days; or
(ii) if the Paying Agent ceases to meet the requirements
set forth in Section 2.2(a) of the Trust Agreement; or
(iii) if the Paying Agent shall be adjudged bankrupt or
insolvent by a court of competent jurisdiction, or a receiver,
conservator, liquidator, or trustee shall be appointed for or with
respect to the Paying Agent, or for all or substantially all of its
property, or a court of competent jurisdiction shall approve any
petition filed against the Paying Agent for its reorganization, and
such adjudication or order shall remain in force or unstayed for a
period of 30 days; or
(iv) if the Paying Agent shall institute proceedings for
voluntary bankruptcy, or shall file a petition seeking reorganization
under the Federal bankruptcy laws, or for relief under any law for the
relief of debtors, or shall consent to the appointment of a receiver
or conservator for or in respect of the Paying Agent for all or
substantially all of its property, or shall make a general assignment
for the benefit of its creditors, or shall admit in writing its
inability to pay its debts generally as they become due; or
(v) upon the voluntary or involuntary dissolution of the
Paying Agent or, unless the Trust shall have given its prior written
consent thereto, the merger or consolidation of the Paying Agent with
any other entity; or
(vi) at any time upon 60 days' prior written notice.
If any of the events specified in clauses (ii), (iii), (iv) or (v) of this
Section 6.1(a) shall occur, the Paying Agent shall give immediate written
notice thereof to the Trust.
(b) Subject to Section 6.4, the Paying Agent shall be removed
immediately upon (i) termination of the Trust Agreement, (ii) termination of
the Administration Agreement, (iii) termination of the Collateral Agreement,
(iv) termination of the Custodian Agreement, or (v) the resignation or removal
of the Administrator, the Collateral Agent or the Custodian.
-8-
12
Section 6.2. Resignation. Subject to Section 6.4, the Paying
Agent may at any time resign by giving 60 days' written notice by registered or
certified mail to the Trust in accordance with the provisions of Section 6.3.
Such resignation shall take effect upon the appointment of a successor Paying
Agent by the Trust.
Section 6.3. Appointment of Successor. If the Paying Agent
hereunder shall resign or be removed, a successor may be appointed by the Trust
by an instrument or concurrent instruments in writing signed by the Trustees.
Every such successor Paying Agent appointed pursuant to the provisions of this
Agreement shall satisfy the requirements set forth in Section 2.2(a) of the
Trust Agreement.
Section 6.4. Effectiveness of Resignation or Removal. No
resignation or removal of the Paying Agent shall be effective until a successor
Paying Agent shall have been appointed and shall have accepted the duties of
the Paying Agent. If, within 30 days after notice by the Paying Agent to the
Trust or by the Trust to the Paying Agent of any such resignation or removal,
no successor Paying Agent shall have been selected and accepted the duties of
the Paying Agent, the Paying Agent may apply to a court of competent
jurisdiction for the appointment of a successor Paying Agent, and the Trust
shall pay all fees and expenses, including but not limited to the cost of legal
counsel, reasonably incurred by the Paying Agent in applying to such court for
the appointment of a successor Paying Agent.
Section 6.5. Acceptance by Successor. Every successor Paying
Agent appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Trust an instrument in writing accepting such
appointment hereunder, whereupon such successor, without any further act, deed
or conveyance, shall become fully vested with all the estates, properties,
rights, powers, duties and obligations of its predecessors. Such predecessor
shall, nevertheless, on the written request of its successor or the Trust,
execute and deliver an instrument transferring to such successor all the
estates, properties, rights and powers of such predecessor hereunder. Every
predecessor Paying Agent shall forthwith deliver to the Trust or to any
successor Paying Agent as requested by the Trust (i) copies of all books and
records maintained by it and (ii) any funds deposited with the Paying Agent by
the Trust.
Section 6.6. Survival. The Trust's representations, warranties,
covenants and obligations to the Paying Agent under Article IV and Sections 5.5
and 5.6 shall survive the termination of this Agreement.
-9-
13
ARTICLE VII
MISCELLANEOUS
Section 7.1. Term of Agreement. This Agreement shall continue in
effect until the completion of the liquidation of the Trust in accordance with
Section 8.3(c) of the Trust Agreement.
Section 7.2. No Assumption of Liability. By executing this
Agreement, none of the Trustees assumes any personal liability hereunder.
Section 7.3. Notices.
(a) All notices and other communications provided for in this
Agreement, unless otherwise specified, shall be in writing (including
transmittals by telex or telecopier) given at the addresses set forth in the
following sentences or at such other addresses as may be designated by notice
duly given in accordance with this Section 7.3 to each other party hereto.
Until such notice is given, (i) notices to the Paying Agent shall be directed
to it at ChaseMellon Shareholder Services, L.L.C., 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telecopier No. (000) 000-0000, Attention [Xxxxxx
Xxxxxxxx]; and (ii) notices to the Trust or the Trustees shall be directed to
the Trustees at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Telecopier: (000) 000-0000 with a copy to the Administrator at The Chase
Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopier No.
(000) 000-0000, Attention: Pledged Asset Control Services.
(b) Each such notice given pursuant to Section 7.3(a) shall be
effective (i) if sent by certified mail (return receipt requested), 72 hours
after being deposited in the United States mail, postage prepaid; (ii) if given
by telex or telecopier, when such telex or telecopied notice is transmitted
(with electronic confirmation of transmission or verbal confirmation of
receipt); or (iii) if given by any other means, when delivered at the address
specified in this Section 7.3.
Section 7.4. Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
To the extent permitted by law, the unenforceability or invalidity of any
provision or provisions of this Agreement shall not render any other provision
or provisions contained in this Agreement unenforceable or invalid.
-10-
14
Section 7.5. Amendments; Waivers. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by the Paying Agent and the
Trust or, in the case of a waiver, by the party against whom the waiver is to
be effective. No failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies provided in this Agreement shall be cumulative and not exclusive of
any rights or remedies provided by law. The Trustees shall notify the Paying
Agent of any change in the Trust Agreement prior to the effective date of any
such change.
Section 7.6. Non-Assignability. This Agreement and the rights and
obligations of the parties hereunder may not be assigned or delegated by either
party without the prior written consent of the other party, and any purported
assignment without such consent shall be void.
Section 7.7. Provisions of Law to Control. This Agreement shall
be subject to the applicable provisions of the Investment Company Act and the
rules and regulations of the Commission thereunder. To the extent that any
provisions contained in this Agreement conflict with any applicable provisions
of the Investment Company Act or such rules and regulations, the latter shall
control.
Section 7.8. No Third Party Rights; Successors and Assigns. This
Agreement is not intended and shall not be construed to create any rights in
any person other than the Paying Agent and the Trust and their respective
successors and assigns and no person shall assert any rights as third party
beneficiary hereunder. Whenever any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party.
All the covenants and agreements contained in this Agreement by or on behalf of
the Paying Agent and the Trust shall bind, and inure to the benefit of, their
respective successors and assigns whether so expressed or not, and shall be
enforceable by and inure to the benefit of the Trust and its successors and
assigns.
Section 7.9. Counterparts. This Agreement may be executed,
acknowledged and delivered in any number of counterparts, each of which shall
be an original, but all of which shall constitute a single agreement, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
-11-
15
IN WITNESS WHEREOF, the parties hereto have caused this Paying Agent
Agreement to be duly executed and delivered as of the first date set forth
above.
THE PAYING AGENT:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., as Paying Agent
By:
---------------------------------
Name:
Title:
THE TRUST:
EXPRESS SCRIPTS AUTOMATIC
EXCHANGE SECURITY TRUST
By:
---------------------------------
Xxxxxx X. Xxxxxxx
as Trustee
By:
---------------------------------
Xxxxxxx X. Xxxxxx, III
as Trustee
By:
---------------------------------
Xxxxx X. X'Xxxxx
as Trustee
-12-
