-----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, TqGLUbt0wLmT4hOuZXzhRFEAtUt6fSI0jzZeKZJ/VlFmagkkCK2hSnXMqshn2TVB 63psW/79kU7uK5ELgiWPEA== 0000905718-99-000299.txt : 19990507 0000905718-99-000299.hdr.sgml : 19990507 ACCESSION NUMBER: 0000905718-99-000299 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990506 EFFECTIVENESS DATE: 19990506 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERGEN BRUNSWIG CORP CENTRAL INDEX KEY: 0000011454 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-DRUGS PROPRIETARIES & DRUGGISTS' SUNDRIES [5122] IRS NUMBER: 221444512 STATE OF INCORPORATION: NJ FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-77871 FILM NUMBER: 99612005 BUSINESS ADDRESS: STREET 1: 4000 METROPOLITAN DR CITY: ORANGE STATE: CA ZIP: 92668 BUSINESS PHONE: 7143854000 MAIL ADDRESS: STREET 1: 4000 METROPOLITAN DRIVE CITY: ORANGE STATE: CA ZIP: 92668 FORMER COMPANY: FORMER CONFORMED NAME: BERGEN DRUG CO INC DATE OF NAME CHANGE: 19690409 S-8 1 S-8 As filed with the Securities and Exchange Commission on May , 1999 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BERGEN BRUNSWIG CORPORATION (Exact name of registrant as specified in its charter) New Jersey 22-1444512 (State or other jurisdiction of (I.R. S. Employer) incorporation or organization) Identification No.) 4000 Metropolitan Drive, Orange, California 92868-3598 (Address of Principal Executive Offices Zip Code) ___________________ PHARMERICA, INC. STOCK OPTIONS (Full title of the plans) Milan A. Sawdei Executive Vice President, Chief Legal Officer and Secretary Bergen Brunswig Corporation 4000 Metropolitan Drive Orange, California 92868-3598 714-385-4000 (Name, address and telephone number, including area code, of agent for service) with a copy to: Peter H. Ehrenberg, Esq. Lowenstein Sandler PC 65 Livingston Avenue Roseland, New Jersey 07068 __________________ Calculation of Registration Fee =================================================================================================================================== Proposed Proposed Title of maximum maximum Securities offering aggregate to be Amount to be price per offering Amount of Registered registered unit (1) price registration fee ____________________________________________________________________________________________________________________________________ Common Stock, 1,564,550 $19.34 $30,258,393 $8,411.83 par value $1.50 shares (2) per share ===================================================================================================================================
(1) Pursuant to Rule 457, the proposed maximum offering price per share is estimated solely for the purpose of computing the amount of the registration fee and is based on the average of the high and low sales price of the Common Stock of the registrant reported on the New York Stock Exchange on April 30, 1999. (2) Plus such indeterminate number of additional shares as shall become issuable pursuant to the anti-dilution provisions of the above-mentioned options. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, filed by Bergen Brunswig Corporation (the "Company") with the Securities and Exchange Commission (the "SEC"), are hereby incorporated by reference: (a) the Company's Annual Report on Form 10-K for the year ended September 30, 1998, as amended; (b) the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 1998; (c) the Company's Current Reports on Form 8-K dated November 12, 1998, January 13, 1999, January 26, 1999, April 19, 1999 and April 30, 1999; (d) the description of the Common Stock of the Company contained in the Company's Registration Statement on Form S-4 declared effective by the SEC on March 16, 1999; and (e) the description of the Company's Shareowners' Rights Plan contained in the Company's Registration Statement on Form 8-A dated February 14, 1994. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered 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 herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that such statement is modified or superseded by a subsequently filed document which also is or is deemed to be incorporated by reference herein. Any such statement so modified or superseded shall not be deemed to constitute a part of this registration statement except as so modified or superseded. Item 4. Description of Securities. Not Applicable. Item 5. Interests of Named Experts and Counsel. Not Applicable. Item 6. Indemnification of Directors and Officers. Under the Company's Restated Certificate of Incorporation, every person who is or was a director, officer, employee or agent of the Company and the legal representative of such a person is entitled to receive indemnification from the Company to the fullest extent permitted by law. Under New Jersey law, directors and officers may be indemnified in certain situations, subject to the Company's having taken certain actions and the directors and officers having met certain specified standards of conduct. In addition, in April, 1986, the Company entered into agreements, which were amended on July 3, 1986 (collectively, the "Indemnity Agreement"), to indemnify each of its directors against liabilities and defense costs to the extent that such directors would have been insured under the director and officer liability insurance policies which were in effect on December 31, 1984 (the "1984 Policy"). The 1984 Policy afforded the broadest coverage for liabilities arising under ERISA and the securities and anti-trust laws. The obligation of the Company to indemnify a director under the Indemnity Agreement is limited to $30 million, the maximum coverage available under the 1984 Policy. However, the Indemnity Agreement does not limit a director's right to recover in excess of $30 million from the Company if the director is otherwise entitled to statutory indemnification. The Indemnity Agreement was ratified by the shareowners at the annual meeting held on December 17, 1986. The Company currently maintains a directors' and officers' insurance policy which provides liability coverage with respect to its directors and officers. In addition, the Company's Restated Certificate of Incorporation eliminates the personal liability of directors and officers to the Company and its shareowners for monetary damages for acts or omissions (including negligent and grossly negligent acts or omissions) in violation of a director's or officer's fiduciary duty of care. The duty of care refers to a fiduciary duty of directors and officers to manage the affairs of the Company with the same degree of care as would be applied by an "ordinarily prudent person under similar circumstances". The provisions of the Company's Restated Certificate of Incorporation which eliminate the personal liability of directors and officers do not, in any way, eliminate or limit the liability of a director or officer for breaching his duty of loyalty (i.e., the duty to refrain from fraud, self-dealing and transactions involving improper conflicts of interest) to the Company or its shareowners, failing to act in good faith, knowingly violating a law or obtaining an improper personal benefit and do not have any effect on the availability of equitable remedies. See also the undertakings set forth in response to item 9 herein. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. The Exhibits accompanying this Registration Statement are listed on the accompanying Exhibit Index. Item 9. Undertakings. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are 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 1993; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement(or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that Paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8 and 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 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant 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 Section 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. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or 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 Securities Act of 1933 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 that 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 Securities Act of 1933 and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the 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 Orange, State of California, on the 3rd day of May, 1999. BERGEN BRUNSWIG CORPORATION By: /s/ Milan A. Sawdei __________________________ Milan A. Sawdei, Executive Vice President Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on the 3rd day of May, 1999. /s/ Robert E. Martini* Chairman of the ___________________________ Board and Director Robert E. Martini /s/ Donald R. Roden* President, Chief ___________________________ Executive Officer and Director Donald R. Roden /s/ Neil F. Dimick* Executive Vice President, ___________________________ Chief Financial Officer Neil F. Dimick and Director (Principal Financial Officer and Principal Accounting Officer) /s/ Jose E. Blanco, Sr.* Director ___________________________ Jose E. Blanco, Sr. /s/ Rodney H. Brady* Director ___________________________ Rodney H. Brady /s/ Charles C. Edwards* Director ___________________________ Charles C. Edwards, M.D. /s/ Charles J. Lee* Director ___________________________ Charles J. Lee /s/ George R. Liddle* Director ___________________________ George R. Liddle /s/ James R. Mellor* Director ___________________________ James R. Mellor /s/ George E. Reinhardt, Jr.* Director ___________________________ George E. Reinhardt, Jr. /s/ Francis G. Rodgers* Director ___________________________ Francis G. Rodgers *By: /s/ Milan A. Sawdei ________________________ Milan A. Sawdei, Attorney-in-Fact EXHIBIT INDEX 4.1 Restated Certificate of Incorporation of Bergen Brunswig Corporation, dated November 13, 1998, is incorporated by reference to Exhibit 4.1 to the Company's Post-Effective Amendment No. 2 to Form S-3 dated December 17, 1998 (file no. 333-63441). 4.2 By-laws of Bergen Brunswig Corporation, as amended and restated, dated November 13, 1998 are incorporated by reference to Exhibit 4.2 to the Company's Post-Effective Amendment No. 2 to Form S-3 dated December 17, 1998 (file no. 333-63441). 4.3 Rights Agreement, dated as of February 8, 1994, between the Registrant and Chemical Trust Company of California, as Rights Agent, is incorporated by reference herein to Exhibit 1 to the Registrant's Registration Statement on Form 8-A dated February 14, 1994. 5.1* Opinion of Lowenstein Sandler PC. 23.1* Consent of Deloitte & Touche LLP 23.2* Consent of Arthur Andersen LLP 23.3* Consent of Ernst & Young LLP 23.4 Consent of Lowenstein Sandler PC is included in Exhibit 5.1. 24.1* Power of Attorney. - ---------------- * Filed herewith. EX-5 2 OPINION OF LOWENSTEIN SANDLER EXHIBIT 5.1 May 3, 1999 Bergen Brunswig Corporation 4000 Metropolitan Drive Orange, California 92868 Re: Registration Statement on Form S-8 PharMerica, Inc. Stock Options Gentlemen: You have requested our opinion, as special securities counsel, in connection with the registration with the Securities and Exchange Commission under the Securities Act of 1933, as amended, of 1,564,550 shares of Class A Common Stock, par value $1.50 per share (the "Common Stock"), of Bergen Brunswig Corporation (the "Company") issuable from time to time pursuant to the stock options of PharMerica, Inc. assumed by the Company ("Stock Options") in connection with the Company's acquisition by merger pursuant to that certain Agreement and Plan of Merger, dated as of January 11, 1999, by and among the Company, Peacock Merger Corp. and PharMerica, Inc. The Common Stock is to be offered pursuant to a registration statement on Form S-8 (the "Registration Statement"). We have examined and relied upon originals or copies, authenticated or certified to our satisfaction, of the Company's Restated Certificate of Incorporation and by-laws, as amended and restated, and all such corporate records of the Company, communications or certifications of public officials, certificates of officers, directors and representatives of the Company, and such other documents as we have deemed relevant and necessary as the basis of the opinions expressed herein. In making such examination, we have assumed the genuineness of all signatures, the authenticity of all documents tendered to us as originals, and the conformity to original documents of all documents submitted to us as certified or photocopied copies. Based upon the foregoing and relying upon statements of fact contained in the documents which we have examined, we are of the opinion that the shares of Common Stock available for issuance pursuant to the Stock Options, when issued, delivered and paid for in accordance with the terms and conditions of the Stock Options, will be legally issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and the reference to this firm in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission. Very truly yours, /s/ LOWENSTEIN SANDLER PC EX-23 3 CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Bergen Brunswig Corporation on Form S-8 pertaining to the PharMerica, Inc. Stock Options of our report dated October 30, 1998, appearing in the Annual Report on Form 10-K of Bergen Brunswig Corporation for the year ended September 30, 1998. /s/ DELOITTE & TOUCHE LLP Costa Mesa, California May 3, 1999 EX-23 4 CONSENT OF ARTHUR ANDERSEN EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement (Form S-8) pertaining to the PharMerica, Inc, Stock Options of our reports dated February 26, 1999 for PharMerica, Inc. included in the Bergen Brunswig Corporation's Form 8-K dated April 30, 1999 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Baltimore, Maryland May 3, 1999 EX-23 5 CONSENT OF ERNST & YOUNG EXHIBIT 23.3 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the PharMerica, Inc, Stock Options of our report dated April 18, 1997, with respect to the 1996 consolidated financial statements and schedule of PharMerica, Inc. (formerly Pharmacy Corporation of America) and subsidiaries included in the Bergen Brunswig Corporation Current Report (Form 8-K) dated April 30, 1999, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Little Rock, Arkansas May 3, 1999 -----END PRIVACY-ENHANCED MESSAGE-----