As filed with the Securities and Exchange Commission on July 20, 1995
Registration No. 33-59784
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
POST-EFFECTIVE AMENDMENT NO. 1
to
FORM S-3
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 92668-3510
(714) 385-4000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
_______________
MILAN A. SAWDEI
Secretary
4000 Metropolitan Drive
Orange, California 92668-3510
(714) 385-4255
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_______________
Copy to:
Richard M. Sandler, Esq.
Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
65 Livingston Avenue
Roseland, New Jersey 07068
_______________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement,
as determined by the Selling Shareholders. See "Selling Shareholders".
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
This Amendment to the Registration Statement shall become effective on such
date as the Commission, acting pursuant to Section 8(c) of the Securities Act of
1933, may determine.
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BERGEN BRUNSWIG CORPORATION
________________
500,000 Shares
Class A Common Stock
$1.50 Par Value
INTRODUCTION
This Prospectus relates to up to 500,000 shares of the Class A Common
Stock, $1.50 par value (the "Common Stock"), of Bergen Brunswig Corporation (the
"Company"), which will be offered by certain shareholders of the Company. See
"Selling Shareholders". The Company will not receive any of the proceeds from
the sale of shares by the selling shareholders.
The shares of Common Stock offered hereby were issued by the Company to
Healthcare Distributors of Indiana, Inc., an Indiana corporation ("HDI"), in
connection with the acquisition by a subsidiary of the Company of substantially
all of the net assets and business of HDI on January 29, 1993. Thereafter, HDI
liquidated and, in connection therewith, distributed the shares offered hereby
to its shareholders. Accordingly, the shares offered hereby will be sold by the
shareholders of HDI or one of such shareholders' transferees (the "Selling
Shareholders"). The number of shares offered hereby is subject to reduction
under certain circumstances. See "Selling Shareholders".
The Common Stock is listed on the New York Stock Exchange. The shares
of Common Stock offered hereby are offered without underwriters at the market -
that is, at the price in effect on the New York Stock Exchange at the time of
sale by the Selling Shareholders. On July __, 1995, the closing sales price of
the Common Stock on the New York Stock Exchange was $_____ per share. The
Company will bear substantially all expenses in connection with the registration
of the Common Stock being registered hereby, which expenses payable by the
Company are estimated to be approximately $25,000. The Selling Shareholders
will pay all brokerage commissions incurred in connection with the sale of
shares of Common Stock at the market.
___________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
___________________________
The date of this Prospectus is _______, 1995.
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No person has been authorized to give any information or to make any
representations other than as contained in this Prospectus in connection with
the offer made hereby, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. The delivery of this Prospectus at any time does not imply that the
information herein is correct as of any time subsequent to the date hereof.
This Prospectus does not constitute an offer to sell securities in any
jurisdiction to any person to whom it is unlawful to make such offer in such
jurisdiction.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Company can be inspected and copied at the offices of
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and the Commission's Regional Offices in New York (Seven
World Trade Center, 13th Floor, New York, New York 10048) and Chicago (Suite
1400, Northwest Atrium Center, 500 West Madison Street, Chicago, Illinois
60661), and copies of such materials can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. Reports, proxy statements and other information concerning
the Company may also be inspected at the offices of the New York Stock Exchange,
Inc., at 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated herein by reference the following documents of
the Company heretofore filed by it with the Commission:
(a) Annual Report on Form 10-K for the year ended September 30, 1994,
including the portions of the Company's Annual Report to Shareowners
incorporated therein;
(b) Quarterly Report on Form 10-Q for the period ended March 31, 1995;
(c) Current Reports on Form 8-K dated March 3, 1995, April 24, 1995 and
May 23, 1995; and
(d) Registration Statements on Form-8-A dated October 20, 1993 and February
14, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
into this Prospectus. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
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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. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner of Common Stock, to whom this Prospectus is delivered, upon
written or oral request of such person, a copy of any and all of the documents
that have been incorporated by reference in this Prospectus (not including
exhibits to such documents unless such exhibits are specifically incorporated by
reference into such documents). Requests should be directed to Bergen Brunswig
Corporation, 4000 Metropolitan Drive, Orange, California 92668-3510, Attention:
Milan A. Sawdei, Secretary; telephone number (714) 385-4255.
THE COMPANY
Bergen Brunswig Corporation, through its subsidiaries, is a diversified
pharmaceutical and health care product distribution organization and, as such,
is one of the nation's largest suppliers of pharmaceuticals to hospitals and
managed care facilities, one of the largest suppliers of pharmaceuticals and
health care products to chain and independent pharmacies, and a supplier of
medical and surgical products to hospitals, clinics and alternate site health
care facilities.
The Company is incorporated in New Jersey and maintains its principal
executive offices at 4000 Metropolitan Drive, Orange, California 92668-3510;
telephone (714) 385-4000.
SELLING SHAREHOLDERS
On December 11, 1992, the Company, a subsidiary of the Company (the
"Subsidiary"), HDI, the principal shareholder of HDI and its landlord entered
into an Agreement and Plan of Reorganization (the "Agreement"). Pursuant to the
terms of the Agreement, as amended, the Subsidiary acquired substantially all of
the business, assets and property of HDI. In exchange, the Subsidiary agreed to
assume certain liabilities of HDI and the Company agreed to issue shares of
Common Stock to HDI having a market value equal to the "Net Asset Value" of HDI
on January 29, 1993 (the "Closing Date") plus $2,000,000. The Net Asset Value
of HDI is defined in the Agreement to mean HDI's assets transferred to the
Subsidiary, valued in accordance with the terms and provisions of the Agreement,
less the liabilities assumed under the Agreement, valued in accordance with the
terms and provisions of the Agreement. Pursuant to the Agreement:
(i) On the Closing Date, the Company issued an aggregate of 471,565
shares of Common Stock, 330,095 of which were issued in the name of HDI free
of escrow and 141,470 of which were delivered to an escrow agent (the
"Escrow Agent");
(ii) Accountants for the Company and HDI performed an audit of HDI as
of the Closing Date. The Agreement provided that if the Net Asset Value as
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of the Closing Date (the "Closing Net Asset Value") were determined to be
less than $7,431,300 (the "Estimated Net Asset Value"), the Company would be
entitled to a refund of that number of shares of Common Stock determined by
taking the excess of the Estimated Net Asset Value over the Closing Net
Asset Value and dividing such amount by the "Market Value," which is defined
in the Agreement as $20 per share (the average of the high and low sales
prices of the Common Stock on December 11, 1992, the date of the Agreement).
In such instance, the Agreement provided that 70% of the refund shares would
be returned by HDI and the 30% balance would be returned by the Escrow
Agent. The Agreement further provided that if the Closing Net Asset Value
exceeded the Estimated Net Asset Value, the Company would issue that number
of additional shares of Common Stock determined by dividing such excess by
the Market Value. In such instance, the Agreement provided that 70% of the
additional number of shares would be delivered to HDI and the 30% balance
would be delivered to the Escrow Agent.
(iii) The Escrow Agent (and HDI and/or its shareholders, if
insufficient shares are available from the Escrow Agent) is required to
return shares of Common Stock to the Company in the event that (a) the
Subsidiary assigns to HDI certain uncollected trade accounts receivable, (b)
debit memos of HDI are rejected or not honored after the Closing Date, (c)
notes receivable assigned to the Subsidiary on the Closing Date go into
default, or (d) certain indemnification claims are made by the Company, all
as described in the Agreement.
(iv) To date, as a result of the above-mentioned provisions, a total
of 37,608 shares of Common Stock have been returned to the Company,
consisting of 26,326 shares from HDI's shareholders and 11,282 shares from
the Escrow Agreement. The number of shares offered hereby may be further
reduced (but no longer increased) pursuant to the terms of the Agreement
described above.
HDI adopted a plan of liquidation pursuant to which HDI's shareholders
will receive all of the Common Stock ultimately transferred to HDI pursuant to
the Agreement. The following table sets forth information as to the approximate
number of shares of Common Stock allocable to each of HDI's shareholders
pursuant to such plan of liquidation, assuming that 433,957 shares of Common
Stock will be delivered to HDI and transferred by HDI pro rata to such
shareholders pursuant to HDI's plan of liquidation.
Number of Shares
Shareholder Owned Before Offering
----------- ---------------------
W. Michael Keiser ("WMK") 86,791
Frank D. Darnell ("FDD") 161,215
Nancy Darnell ("ND") 161,215
David A. Darnell ("DAD") 24,736
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FDD intends to contribute 20,000 or more of his shares of Common Stock
to Richmond-Master Distributors, Inc. ("RM"). This Registration Statement
covers the offering at the market of (i) the shares of Common Stock distributed
by HDI to each of WMK, ND and DAD, (ii) the shares of Common Stock distributed
by HDI to FDD and contributed by FDD to RM and (iii) the remaining shares of
Common Stock distributed by HDI to FDD. For purposes of this Registration
Statement, each of WMK, ND, DAD, FDD and RM (none of whom own one percent (1%)
of the outstanding common stock) are Selling Shareholders.
It is anticipated that upon completion of this offering, the Selling
Shareholders will not own any shares of Common Stock. Prior to the Closing
Date, none of the Selling Shareholders has ever held any position or office or
had any material relationship with the Company.
MANNER OF SALE
The Common Stock is listed on the New York Stock Exchange. It is
anticipated that the Selling Shareholders will sell the shares of Common Stock
at the market, that is, at the price in effect on the New York Stock Exchange at
the time of sale to investors. Sales will be effected by registered
broker/dealers on the New York Stock Exchange.
EXPERTS
The consolidated financial statements and the related financial
statement schedules of the Company as of September 30, 1994 and August 31, 1993,
for the year ended September 30, 1994, for the one month ended September 30,
1993 and for the years ended August 31, 1993 and 1992, incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for the year
ended September 30, 1994 and to the Company's Current Report on Form 8-K dated
April 24, 1995, have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are incorporated herein by
reference, and have been so incorporated in reliance upon such reports given
upon the authority of said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
-------------------------------------------
Securities and Exchange Commission
registration fee......................... $ 3,213
Legal fees and expenses...................... 6,500
Accounting fees and expenses................. 4,000
Listing fees................................. 10,000
Miscellaneous expenses....................... 1,287
-------
Total...................... $25,000
No portion of the foregoing expenses will be borne by the Selling
Shareholders, except that one or more of the Selling Shareholders will bear the
expenses relating to the filing of Post-Effective Amendment No. 1 to the
Registration Statement.
All expenses other than the Securities and Exchange Commission
registration fee and the Listing fees are estimated.
Item 15. 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 of $30 million.
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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 17 herein.
Item 16. Exhibits
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2.1 Agreement and Plan of Reorganization, dated as of December 11,
1992, among Bergen Brunswig Corporation, B.B.D.C. Corporation,
Healthcare Distributors of Indiana, Inc., Frank D. Darnell and W.
Michael Keiser*
2.3 Amendment No. 1, dated January 29, 1993, to the Agreement and Plan
of Reorganization*
4.1 Restated Certificate of Incorporation, as amended, of Bergen
Brunswig Corporation is incorporated herein by reference to
Exhibit 3 to the Company's Current Report on Form 8-K dated May
23, 1995.
4.2 By-laws of Bergen Brunswig Corporation, as amended, are
incorporated herein by reference to Exhibit 1 to the Company's
Current Report on Form 8-K dated March 3, 1995.
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, a
Professional Corporation*
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan, A
Professional Corporation, is included in Exhibit 5.1
24.1 Power of Attorney*
___________________
*Previously filed.
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Item 17. Undertakings
------------
The undersigned Registrant hereby undertakes:
A. 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 (the "Act"), unless the foregoing information is
contained in periodic reports filed by the Registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that
are incorporated by reference in this Registration Statement; and
(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 thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement, unless the foregoing information is contained in
periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in this 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 the Registration Statement.
B. That, for the purpose of determining any liability under the Act,
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;
C. 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.
D. That for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this 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.
E. That insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, 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
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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.
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<PAGE>
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-3 and has duly caused this
Post-Effective Amendment No. 1 to its Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Orange,
State of California, on the 18th day of July, 1995.
BERGEN BRUNSWIG CORPORATION
By: /s/ Neil F. Dimick
----------------------------
Neil F. Dimick
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the registrant's Registration Statement has
been signed below by the following persons in the capacities and on the dates
indicated.
Robert E. Martini* Chairman of the Board, July 18, 1995
- ----------------------------- Chief Executive Officer and
Robert E. Martini Director
/s/ Rodney H. Brady* Director July 18, 1995
- -----------------------------
Rodney H. Brady
/s/ John Calasibetta* Senior Vice President July 18, 1995
- ----------------------------- and Director
John Calasibetta
/s/ Jose E. Blanco* Director July 18, 1995
- -----------------------------
Jose E. Blanco
/s/ Charles C. Edwards* Director July 18, 1995
- -----------------------------
Charles C. Edwards, M.D.
/s/ Charles J. Lee* Director July 18, 1995
- -----------------------------
Charles J. Lee
/s/ George R. Liddle* Director July 18, 1995
- -----------------------------
George R. Liddle
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Director
- -----------------------------
James R. Mellor
/s/ George E. Reinhardt, Jr.* Director July 18, 1995
- -----------------------------
George E. Reinhardt, Jr.
/s/ Francis G. Rodgers* Director July 18, 1995
- -----------------------------
Francis G. Rodgers
/s/ Dwight A. Steffensen* President and Director July 18, 1995
- -----------------------------
Dwight A. Steffensen
/s/ Neil F. Dimick Director, Chief July 18, 1995
- ----------------------------- Financial Officer and
Neil F. Dimick Principal Accounting Officer
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<PAGE>
*By:/s/ Neil F. Dimick July 18, 1995
--------------------------------------
Neil F. Dimick, attorney-in-fact
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EXHIBIT INDEX
Page
----
2.1 Agreement and Plan of Reorganization, dated as of December
11, 1992, among Bergen Brunswig Corporation, B.B.D.C.
Corporation, Healthcare Distributors of Indiana, Inc.,
Frank D. Darnell and W. Michael Keiser*
2.3 Amendment No. 1, dated January 29, 1993, to the Agreement
and Plan of Reorganization*
4.1 Restated Certificate of Incorporation, as amended, of
Bergen Brunswig Corporation is incorporated herein by
reference to Exhibit 3 to the Company's Current Report on
Form 8-K dated May 23, 1995.
4.2 By-laws of Bergen Brunswig Corporation, as amended, are
incorporated herein by reference to Exhibit 1 to the
Company's Current Report on Form 8-K dated March 3, 1995.
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, a
Professional Corporation*
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan, A
Professional Corporation, is included in Exhibit 5.1
24.1 Power of Attorney*
___________________
*Previously filed.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 33-59784 of Bergen Brunswig Corporation of our report
dated October 31,1994, appearing in the Annual Report on Form 10-K of Bergen
Brunswig Corporation for the year ended September 30, 1994 and of our report
dated October 31, 1994, except for Note 14, as to which the date is January 26,
1995, appearing in the Company's Current Report on Form 8-K dated April 24,
1995. We also consent to the reference to Deloitte & Touche LLP under the
heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
Costa Mesa, California
July 17, 1995
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