As filed with the Securities and Exchange Commission on December __, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 92868-3598
(714) 385-4000
- --------------------------------------------------------------------------------
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
MILAN A. SAWDEI
Executive Vice President, Chief Legal Officer and Secretary
4000 Metropolitan Drive
Orange, California 92868-3510
(714) 385-4255
- --------------------------------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Peter H. Ehrenberg, Esq.
Lowenstein Sandler PC
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: |_|
================================================================================
<PAGE>
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|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_| _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
- ---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<TABLE>
======================================================================================
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed
Proposed maximum
Title of each class maximum aggregate Amount of
of securities to be Amount to offering price offering registration
registered be registered per unit (1) price (1) fee
- ---------------------- ------------- -------------- -------------- ------------
<C> <C> <C> <C> <C>
Class A Common Stock,
$1.50 par value 227,425 Shares $30.4375 $6,922,248.44 $1,924
======================================================================================
<FN>
(1) Pursuant to Rule 457(c), the proposed maximum offering price
per unit is estimated solely for the purpose of calculating the
registration fee and is based on the average of the high and low
sale prices of the Class A Common Stock on the New York Stock
Exchange Composite Transactions Tape on December 7, 1998.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
BERGEN BRUNSWIG CORPORATION
------------
________ Shares
Class A Common Stock
The shareholders of Bergen Brunswig Corporation listed below
are offering and selling up to _______ shares of the Company's Class A Common
Stock under this Prospectus.
The selling shareholders obtained their shares of Class A
Common Stock on December __, 1998 in connection with the acquisition by a
subsidiary of the Company of substantially all of the net assets and business of
Medical Initiatives, Inc., a Florida corporation of which they were the sole
shareholders.
The Class A Common Stock is listed on the New York Stock
Exchange under the symbol "BBC". On December __, 1998, the closing sales price
of the Common Stock on the New York Stock Exchange was $______.
The selling shareholders will sell their shares of Class A
Common Stock on the New York Stock Exchange at prevailing market prices. Bergen
Brunswig Corporation will not receive any of the proceeds from the sale of the
shares of Class A Common Stock by the selling shareholders.
The Company's principal executive offices are located at 4000
Metropolitan Drive, Orange, California 92878-3598; telephone (714) 385-4000.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this Prospectus. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is December ____, 1998
<PAGE>
ADDITIONAL INFORMATION
We file annual, quarterly, and current reports, proxy statements, and
other documents with the SEC. You may read and copy any document we file at the
SEC's public reference room at Judiciary Plaza Building, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549. You should call 1-800-SEC-0330 for more
information on the public reference room. The SEC maintains an Internet site at
http://www.sec.gov where certain reports, proxy and information statements, and
other information regarding issuers (including Bergen Brunswig Corporation) may
be found.
This Prospectus is part of a registration statement that we filed with
the SEC. The registration statement contains more information than this
Prospectus regarding Bergen Brunswig Corporation and its Class A Common Stock,
including certain exhibits. You can get a copy of the registration statement
from the SEC at the address listed above or from its Internet site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate" into this Prospectus information we
file with it in other documents. This means that we can disclose important
information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be part
of this Prospectus, and information we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below, except to the extent information in those documents
is different from the information contained in this Prospectus, and all future
documents filed with the SEC under Sections 13(a), 13(c) or 15(d) of the
Securities Exchange Act of 1934 until we terminate the offering of these shares.
(a) Annual Report on Form 10-K for the fiscal year ended
September 30, 1997;
(b) Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1997, March 31, 1998 and June 30, 1998;
(c) Current Reports on Form 8-K dated March 18, 1998, August
12, 1998 and November 12, 1998;
(d) Definitive Proxy Statement on Schedule 14A dated August
21, 1998; and
(e) The description of the Company's Common Stock set forth in
the Registration Statement on Form 8-A filed by the Company with the Commission
on October 20, 1993 pursuant to Section 12 of the Exchange Act, and any
amendment or report filed for the purpose of updating any such description.
We will provide without charge to each person, including any beneficial
owner of Class A Common Stock ("Common Stock"), to whom this Prospectus is
delivered, upon written or oral request of such person, a copy of any and all of
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<PAGE>
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 therein). Requests should be directed to Bergen
Brunswig Corporation, 4000 Metropolitan Drive, Orange, California 92868-3598,
Attention: Milan A. Sawdei, Secretary; telephone number (714) 385-4255.
You should rely only on the information contained in or incorporated by
reference in this document. Bergen Brunswig Corporation has not authorized
anyone to provide you with information that is different. The Common Stock is
not being offered in any state where the offer is not permitted. You should not
assume that the information in this Prospectus is accurate as of any date other
than the date on the front of this Prospectus.
THE COMPANY
Bergen Brunswig Corporation, formed in 1956, and its
subsidiaries (collectively, the "Company") are a diversified drug and health
care distribution organization and, as such, the nation's largest supplier of
pharmaceuticals to the managed care market and the second largest wholesaler to
the retail pharmacy market. The Company is one of the largest pharmaceutical
distributors to provide both pharmaceuticals and medical-surgical supplies on a
national basis.
SELLING SHAREHOLDERS
On November 19, 1998, the Company, MII Acquisition Corp. (the
"Subsidiary") and Medical Initiatives, Inc. ("MII") entered into an Acquisition
Agreement and Plan of Reorganization (the "Agreement"). On December __, 1998,
(the "Closing Date") the Closing contemplated by the Agreement was consummated.
Pursuant to the terms of the Agreement, the Subsidiary acquired substantially
all of the business, assets and property of MII. In exchange, the Subsidiary
agreed to assume certain liabilities of MII and the Company issued shares of
Common Stock to MII having a "Market Value" equal to the "Estimated Purchase
Price", subject to later adjustment as provided in the Agreement. The Market
Value is defined in the Agreement as the average of the last sale prices, quoted
regular way, of the Common Stock on the New York Stock Exchange during the ten
trading days ending three days prior to the Closing Date, provided, however,
that the Market Value shall not be less than $24.00 and not more than $33.00.
All per share figures set forth herein have been retroactively adjusted to
reflect the Company's recent two-for-one stock split. The Estimated Purchase
Price is defined in the Agreement as $6,232,000. Pursuant to the Agreement:
(i) On the Closing Date, the Company issued an aggregate of
______ shares of Common Stock, ________ (80%) of which were issued in
the name of MII free of escrow and ________(20%) of which were
delivered to an escrow agent (the "Escrow Agent");
(ii) Pursuant to the Agreement, accountants for the Company
and MII will generate a report determining the value of MII's assets
transferred to the Company, less its liabilities assumed by the Company
("Net Asset Value") as of the Closing Date. If the Net Asset Value
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<PAGE>
exceeds $800,000, the Company will issue that number of additional
shares of Common Stock determined by dividing (i) the excess of such
Net Asset Value over $800,000 by (ii) the Market Value. Ninety percent
of such additional shares (if any) will be issued in the name of MII
free of escrow and the balance will be delivered to the Escrow Agent.
If the Net Asset Value is less than $800,000, the Company will be
entitled to a refund of that number of shares of Common Stock
determined by dividing (i) the excess of $800,000 over such Net Asset
Value by (ii) the Market Value. In such instance, 80% of the refund
shares will be returned to the Company by MII (or its shareholders) and
the 20% balance will be returned by the Escrow Agent.
(iii) The Agreement also requires the Escrow Agent to return
shares of Common Stock to the Company in the event that certain
indemnification claims are made by the Company, as described in the
Agreement.
MII has advised the Company that it will adopt a plan of liquidation or other
plan or agreement pursuant to which MII's shareholders (the "Selling
Shareholders") will receive all, or substantially all, of the Common Stock
ultimately transferred to MII pursuant to the Agreement. The following table
sets forth the percentage ownership of each of MII's shareholders in MII, and,
accordingly, the percentage of the shares of Common Stock issued to MII and the
Escrow Agent which will be transferred to each of MII's shareholders pursuant to
such plan or agreement, assuming no additions to or deletions from the escrow.
The table also sets forth the approximate number of shares that would be
allocable to each of MII's shareholders pursuant to such plan or agreement,
assuming that ________ shares of Common Stock will be delivered to MII and the
Escrow Agent and transferred by MII and the Escrow Agent pro rata to such
shareholders pursuant to the plan or agreement.
<TABLE>
<CAPTION>
Percentage Ownership Number of Shares
Selling Shareholder of MII to be Received*
- ------------------- -------------------- ----------------
<S> <C> <C>
Gewinner Garrison 31.65 ______
Terry Haynes 31.65 ______
Brenda Scholl 5.05 ______
Zachary Scholl 31.65 ______
- -----------------------
<FN>
*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 had ever held any position or office or had any
material relationship with the Company or any of its subsidiaries.
</FN>
</TABLE>
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<PAGE>
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.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of
Common Stock by the Selling Shareholders.
FORWARD LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 (the
"Act") provides a "safe harbor" for "forward-looking statements" (as defined in
the Act). This Prospectus incorporates by reference forward-looking statements
which reflect the Company's current view (as of the date such forward-looking
statement is made) with respect to future events, prospects, projections or
financial performance. These forward-looking statements are subject to certain
uncertainties and other factors that could cause actual results to differ
materially from those made, implied or projected in such statements. These
uncertainties and other factors include, but are not limited to, uncertainties
relating to general economic conditions; the loss of one or more key customer or
supplier relationships, including pharmaceutical or medical-surgical
manufacturers for which alternative supplies may not be available; the
malfunction or failure of the Company's information systems; the costs and
difficulties related to the integration of recently acquired businesses; changes
to the presentation of financial results and position resulting from adoption of
new accounting principles or upon the advice of the Company's independent
auditors, or the staff of the Securities and Exchange Commission; changes in the
distribution or outsourcing pattern for pharmaceutical or medical-surgical
products, including any increase in direct distribution or decrease in contract
packaging by pharmaceutical manufacturers; changes in, or failure to comply
with, government regulations; the costs and other effects of legal and
administrative proceedings; competitive factors in the Company's healthcare
service businesses, including pricing pressures; the continued financial
viability and success of the Company's customers and suppliers; technological
developments and products offered by competitors; failure to retain or continue
to attract senior management or key personnel; risks associated with
international operations, including fluctuations in currency exchange ratios;
successful challenges to the validity of the Company's patents, copyrights
and/or trademarks; difficulties or delays in the development, production and
marketing of new products and services; strikes or other labor disruptions;
labor and employee benefit costs; pharmaceutical and medical-surgical
manufacturers' pricing policies and overall drug and medical-surgical supply
price inflation; changes in hospital buying groups or hospital buying practices;
and other factors referenced in documents incorporated by reference herein. The
words "believe," "expect," "anticipate," "project," and similar expressions
identify "forward-looking statements," which speak only as of the date the
statement was made. The Company undertakes no obligation to publicly update or
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<PAGE>
revise any forward-looking statements, whether as a result of new information,
future events or otherwise.
RECENT DEVELOPMENTS
On December 1, 1998, the Company effected a 2-for-1 stock
split applicable to holders of record of the Company's Class A Common Stock on
November 2, 1998.
On October 7, 1998, the Company announced that it would record
a special, pre-tax charges of approximately $100 million in the fourth quarter
of fiscal 1998 (i.e., the quarter ended September 30, 1998), approximately $87
million of which represents a non-cash charge for Bergen Brunswig Medical
Corporation ("BBMC") goodwill that has been carried on the books from certain
acquisitions completed prior to September 1995.
Along with the goodwill charge, a pre-tax $3 million BBMC
restructuring charge was taken in the fourth quarter, which represents severance
costs associated with streamlining and refocusing the sales organization and
costs associated with the consolidation of four divisions to improve efficiency
and customer service. Other costs included in the pre-tax charge are:
approximately $5 million related to the abandonment of capitalized software as a
result of technology improvements; and approximately $5 million of merger costs,
net of a reimbursement from Cardinal resulting from the termination of the
Cardinal Health, Inc. ("Cardinal") merger agreement.
On August 23, 1997, the Company signed a definitive merger
agreement with Cardinal, a distributor of pharmaceuticals and provider of
value-added pharmaceutical-related services, headquartered in Dublin, Ohio. The
merger agreement called for the Company to become a wholly-owned subsidiary of
Cardinal and for shareowners of the Company to receive 0.581 of a Cardinal
Common Share, as adjusted for the Company's 2-for-1 stock split paid December 1,
1998 and Cardinal's 3-for-2 stock paid October 30, 1998, in exchange for each
outstanding share of the Company's Class A Common Stock. On July 31, 1998, the
United States District Court for the District of Columbia granted the Federal
Trade Commission's request for a preliminary injunction to halt the proposed
merger. On August 7, 1998, the Company and Cardinal jointly terminated the
merger agreement.
EXPERTS
The consolidated financial statements of the Company
incorporated in this Prospectus by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended September 30, 1997, have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission
registration fee........................$ 1,924
Legal fees and expenses..................... 4,000
Accounting fees and expenses................ 2,500
Miscellaneous expenses...................... 1,576
-------
Total...................................$10,000
=======
No portion of the foregoing expenses will be borne by the Selling
Shareholders.
All expenses other than the Securities and Exchange Commission
registration fee 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 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
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<PAGE>
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
4.1 Restated Certificate of Incorporation of Bergen Brunswig
Corporation, dated May 23, 1994, is incorporated by reference
to Exhibit 3 of the Registrant's Current Report on Form 8-K
dated May 23, 1995.
4.2 Certificate of Amendment to the Restated Certificate of
Incorporation of Bergen Brunswig Corporation as filed on
November 5, 1998.
4.3 By-laws of Bergen Brunswig Corporation, as amended and
restated, are incorporated by reference to Exhibit 3(a) to the
Company's Annual Report on Form 10-K for the year ended
September 30, 1996.
4.4 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 Lowenstein Sandler PC is included in Exhibit 5.1.
24.1 Power of Attorney.
II - 2
<PAGE>
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 with or furnished to
the Commission 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 with or furnished to the Commission
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.
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<PAGE>
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
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Orange, State of California, on the 9th day of
December, 1998.
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 and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITTLE DATE
- --------- ------ ----
<S> <C> <C>
/s/ Robert E. Martini* Chairman of the December 9, 1998
- ----------------------- Board and Director
Robert E. Martini
/s/ Donald R. Roden* President, Chief December 9, 1998
- -------------------- Executive Officer and Director
Donald R. Roden
/s/ Neil F. Dimick* Executive Vice President, December 9, 1998
- ------------------- Chief Financial Officer
Neil F. Dimick and Director (Principal
Financial Officer and
Principal Accounting Officer)
/s/ Jose E. Blanco, Sr.* Director December 9, 1998
- -------------------
Jose E. Blanco, Sr.
/s/ Rodney H. Brady* Director December 9, 1998
- --------------------
Rodney H. Brady
/s/ Charles C. Edwards, M.D.* Director December 9, 1998
- -----------------------------
Charles C. Edwards, M.D.
</TABLE>
II - 5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITTLE DATE
- --------- ------ ----
<S> <C> <C>
/s/ Charles J. Lee* Director December 9, 1998
- -------------------
Charles J. Lee
/s/ George R. Liddle* Director December 9, 1998
- ---------------------
George R. Liddle
/s/ James R. Mellor* Director December 9, 1998
- --------------------
James R. Mellor
/s/ George E. Reinhardt, Jr.* Director December 9, 1998
- -----------------------------
George E. Reinhardt, Jr.
/s/ Francis G. Rodgers* Director December 9, 1998
- -----------------------
Francis G. Rodgers
*By: /s/ Milan A. Sawdei
- ---------------------------
Milan A. Sawdei,
Attorney-in-Fact
</TABLE>
II - 6
<PAGE>
EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of Bergen Brunswig
Corporation, dated May 23, 1994, is incorporated by reference
to Exhibit 3 of the Registrant's Current Report on Form 8-K
dated May 23, 1995.
4.2 Certificate of Amendment to the Restated Certificate of
Incorporation of Bergen Brunswig Corporation as filed on
November 5, 1998.
4.2 By-laws of Bergen Brunswig Corporation, as amended and
restated, are incorporated by reference to Exhibit 3(a) to the
Company's Annual Report on Form 10-K for the year ended
September 30, 1996.
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 Lowenstein Sandler PC is included in Exhibit 5.1.
24.1 Power of Attorney.
II - 7
Exhibit 4.2
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
BERGEN BRUNSWIG CORPORATION
---------------------------
Pursuant to N.J.S. 14A:7-15.1(2)
Dated: November 3, 1998
The undersigned corporation, having amended the Restated Certificate of
Incorporation of the Corporation to increase the number of authorized shares of
Class A Common Stock in connection with the declaration of a two for one stock
split in the form of a 100% stock dividend, hereby certifies as follows:
1. The name of the Corporation is Bergen Brunswig Corporation.
2. The date of adoption by the Board of Directors of the resolution
approving the stock split in the form of a 100% stock dividend was September 24,
1998.
3. The amendment to the Restated Certificate of Incorporation will not
adversely affect the rights or preferences of the holders of outstanding shares
of any class or series and will not result in the percentage of authorized
shares that remains unissued after the share dividend, division or combination
exceeding the percentage of authorized shares that was unissued before the share
dividend, division, or combination.
4. The class of shares subject to the dividend, division or combination
is the Corporation's Class A Common Stock, par value $1.50 per share. The number
of shares subject to the dividend, division or combination is 56,048,112, and
the number of shares to be issued on the dividend is 56,048,112.
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<PAGE>
5. The amendment to the Restated Certificate of Incorporation made in
connection with the dividend, division or combination was effected by amending
Article VI of this Corporation's Restated Certificate of Incorporation to read
as follows:
"The total authorized capital stock of the Corporation shall be
203,000,000 shares, consisting of
1. 3,000,000 shares of Preferred Stock without nominal or par
value; and
2. 200,000,000 shares of Class A Common Stock, par value $1.50 per
share.
Shares of authorized capital stock of each class may be issued for such
consideration (not less than the par value thereof in the case of stock
with par value) as may be determined from time to time by the Board of
Directors."
6. The par value of the Class A Common Stock was not adjusted by virtue
of the share dividend, division or combination.
IN WITNESS WHEREOF, Bergen Brunswig Corporation has caused this
Certificate of Amendment to its Restated Certificate of Incorporation to be
executed on its behalf by its Executive Vice President - Chief Legal Officer and
Secretary as of the date first written above. BERGEN BRUNSWIG CORPORATION
By: /s/ Milan A. Sawdei
-------------------------------------------
Milan A. Sawdei, Executive Vice President -
Chief Legal Officer and Secretary
II - 9
Exhibit 5.1
December 9,1998
Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, CA 92868
Re: Registration Statement on Form S-3
Gentlemen:
You have requested our opinion, as your securities counsel, in
connection with the registration with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, of 227,425 shares of Class A
Common Stock (the "Common Stock") of Bergen Brunswig Corporation (the "Company")
to be offered by Medical Initiatives, Inc. ("MII") and/or the former
stockholders of MII (the "Stockholders"). The Common Stock is to be offered
pursuant to a registration statement on Form S-3 (the "Registration Statement").
We have examined and relied upon originals or copies, authenticated or certified
to our satisfaction, of 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 photostated 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 to be offered by MII and/or the Stockholders and covered by the
Registration Statement, when issued by the Company pursuant to the agreement
among the Company, MII and others dated November 19, 1998, shall be legally
issued by the Company, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and any amendment thereto and to all references to this
firm contained in the Registration Statement.
Very truly yours,
LOWENSTEIN SANDLER PC
By: /s/ Peter H. Ehrenberg
--------------------------
Peter H. Ehrenberg
II - 10
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Bergen Brunswig Corporation on Form S-3 of our report dated October 31, 1997,
appearing in the Annual Report on Form 10-K of Bergen Brunswig Corporation for
the fiscal year ended September 30, 1997, and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this Registration
Statement.
DELOITTE & TOUCHE LLP
Costa Mesa, California
December 7, 1998
II - 11
Exhibit 24.1
POWER OF ATTORNEY
WHEREAS, the undersigned officers and directors of Bergen Brunswig
Corporation (the "Company") desire to authorize Robert E. Martini, Donald R.
Roden, Neil F. Dimick and Milan A. Sawdei to act as their attorneys-in-fact and
agents, for the purpose of executing and filing the registration statement
described below, including all amendments and supplements thereto,
NOW, THEREFORE,
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert E. Martini, Donald R. Roden, Neil F.
Dimick and Milan A. Sawdei, and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
to sign the registrant's Registration Statement on Form S-3 pertaining to the
resale of shares of the Class A Common Stock of Bergen Brunswig Corporation
originally issued to Medical Initiatives, Inc. ("MII") in connection with the
Company's acquisition of substantially all of the net assets and business of
MII, including any and all amendments and supplements thereto, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
II - 12
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this power
of attorney in the following capacities as of the 3rd day of December, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------- -----
<S> <C>
/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 and Director
Neil F. Dimick
/s/ James R. Mellor
- -----------------------------
James R. Mellor Director
/s/ Francis G. Rodgers Director
- -----------------------------
Francis G. Rodgers
/s/ George R. Liddle Director
- -----------------------------
George R. Liddle
/s/ Charles J. Lee Director
- -----------------------------
Charles J. Lee
/s/ Rodney H. Brady Director
- -----------------------------
Rodney H. Brady
/s/ Charles C. Edwards, M.D. Director
- -----------------------------
Charles C. Edwards, M.D.
/s/ George E. Reinhardt, Jr. Director
- -----------------------------
George E. Reinhardt, Jr.
/s/ Jose E. Blanco, Sr. Director
- -----------------------------
Jose E. Blanco, Sr.
II - 13
</TABLE>
