As filed with the Securities and Exchange Commission on December __, 1998
Registration No. 333-63441
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
BERGEN BRUNSWIG CORPORATION
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(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
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: |_|
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<PAGE>
BERGEN BRUNSWIG CORPORATION
---------------------------
980,284 Shares
Class A Common Stock
$1.50 Par Value
INTRODUCTION
This Prospectus relates to up to 980,284 shares of the Class A Common Stock, par
value $1.50 per share (the "Common Stock"), of Bergen Brunswig Corporation (the
"Company"), which will be offered by certain shareholders of the Company. See
"Selling Shareholders".
The shares of Common Stock offered hereby were issued by the Company to the
shareholders of The Lash Group, Inc., a Delaware corporation ("Lash"), in
exchange for their shares of Lash common stock, $0.01 par value, in connection
with the merger of Lash and a wholly-owned acquisition subsidiary of the Company
on August 31, 1998. The shares offered hereby will be sold by the shareholders
of the Company who were formerly shareholders of Lash (collectively, the
"Selling Shareholders"). This Prospectus does not purport to cover the initial
issuance by the Company, but only the resale of such shares by the Selling
Shareholders. The Company will not receive any of the proceeds from the sale of
the shares of Common Stock by the Selling Shareholders. 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 price (that
is, at the price in effect on the New York Stock Exchange at the time of sale by
the Selling Shareholders). On December ___, 1998, the closing sales price of the
Common Stock on the New York Stock Exchange was $_______ per share. The Company
will bear all expenses in connection with the registration of the Common Stock
being registered hereby, which expenses are estimated to be approximately
$12,500. 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 ______________, 1998
<PAGE>
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 public reference
facilities maintained by the Commission at its principal office at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, and at the following Regional
Offices of the Commission: New York Regional Office, 7 World Trade Center, 13th
Floor, New York, New York 10048, and Chicago Regional Office, Citicorp Center,
500 West Madison, Suite 1400, Chicago, Illinois 60661. Copies of such materials
can also be obtained from the Public Reference Section of the Commission at 450
Fifth Street, N. W., Washington, D.C. 20549 at prescribed rates, or, with
respect to certain of such materials, through the Commission's World Wide Web
site (http://www.sec.gov). 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.
The Company has filed with the Commission a registration statement on Form S-3
(the "Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Common Stock. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all the
information set forth in the Registration Statement, certain items of which are
contained in schedules and exhibits to the Registration Statement as permitted
by the rules and regulations of the Commission. Statements made in the
Prospectus concerning the contents of any documents referred to herein are not
necessarily complete. With respect to each such document filed with the
Commission as an exhibit to the Registration Statement, reference is made to the
exhibit for a more complete description, and each such statement shall be deemed
qualified in its entirely by such reference.
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 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;
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<PAGE>
(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.
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
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
therein). Requests should be directed to Bergen Brunswig Corporation, 4000
Metropolitan Drive, Orange, California 92868-3510, Attention: Milan A. Sawdei,
Secretary; telephone number (714) 385-4255.
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.
The Company is incorporated in New Jersey and maintains its principal executive
offices at 4000 Metropolitan Drive, Orange, California 92868-3510; telephone
(714) 385-4000.
SELLING SHAREHOLDERS
On August 31, 1998, the Company, L-B Acquisition Corp. (the "Subsidiary") and
Lash entered into an Agreement and Plan of Merger (the "Agreement"). Pursuant to
the terms of the Agreement, the Subsidiary was merged with and into Lash (the
"Merger") and the shareholders of Lash received, in exchange for their shares of
Lash common stock, shares of Common Stock. Upon completion of the closing, the
Company and Lash filed a Certificate of Merger with the Secretary of State of
Delaware and the Merger became effective as of August 31, 1998 (the "Effective
Time"). On December 1, 1998, the Company effected a two-for-one stock split
applicable to holders of the Company's Common Stock on November 2, 1998 (the
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<PAGE>
"Split"). As holders of record on November 2, 1998, the Selling Shareholders
participated in the Split. Pursuant to the Agreement:
(i) at the Effective Time, the Company issued an aggregate of 980,284
(post-Split) shares of Common Stock, 882,264 (post-Split) of
which were issued in the names of the Selling Shareholders free
of escrow and in proportion to their respective ownership
interests in Lash and 98,020 (post-Split) of which were delivered
to an escrow agent (the "Escrow Agent"); and
(ii) the Escrow Agent is required 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.
No more than 980,284 (post-Split) shares of Common Stock, in the aggregate, will
be issued in connection with the Merger.
The following table sets forth information as to the number of shares of Common
Stock that will be beneficially owned by the Selling Shareholders, each of whom
will own less than one percent (1%) of the outstanding Common Stock of the
Company, assuming that a total of 980,284 (post-Split) shares of Common Stock,
including all those shares initially delivered to the Escrow Agent, will be
delivered to the Selling Shareholders as described above.
<TABLE>
<CAPTION>
Number of Shares Owned
Selling Shareholder Before Offering*
- ------------------- ----------------------
<S> <C>
L. Michael Costa 25,828
Patricia B. Cushnie 60,208
Peyton R. Howell 79,788
Myles P. Lash 517,578
N. Dee Mahan 24,222
John J. Marsh, III 146,156
Tracy L. Ott 7,398
W. William Ward, Jr. 119,106
<FN>
*All numbers have been adjusted to reflect the Split. It is anticipated that
upon completion of this offering, the Selling Shareholders will not own any
shares of Common Stock. Prior to the Effective Time, 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>
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.
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<PAGE>
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 health care
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
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 two-for-one 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 special, pre-tax
charges of approximately $100 million in the fourth quarter of fiscal 1998,
approximately $87 million of which
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<PAGE>
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 0.58125 of a Cardinal Common
Share, as adjusted for the Company's two-for-one stock split paid December 1,
1998 and for Cardinal's three-for-two stock split 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.................................. $ 5,323
Legal fees and expenses............................... 4,000
Accounting fees and expenses.......................... 2,500
Miscellaneous expenses................................ 677
-------
Total.................................... $12,500
=======
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
II - 1
<PAGE>
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
4.1** Restated Certificate of Incorporation of Bergen Brunswig
Corporation dated November 13, 1998.
4.2** By-laws of Bergen Brunswig Corporation, as amended and
restated, dated November 13, 1998
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.
- -------------------------------
* Previously filed.
** Filed with Post-Effective Amendment No. 2.
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.
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
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<PAGE>
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 Post-Effective
Amendment No. 2 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Orange, State of
California, on the 15th 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 Post-Effective
Amendment No. 2 to the Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Robert E. Martini* Chairman of the December 15, 1998
- ------------------------ Board and Director
Robert E. Martini
/s/ Donald R. Roden* President, Chief December 15, 1998
- ---------------------- Executive Officer
Donald R. Roden and Director
/s/ Neil F. Dimick* Executive Vice President, December 15, 1998
- ---------------------- Chief Financial Officer
Neil F. Dimick and Director (Principal
Financial Officer and
Principal Accounting
Officer)
/s/ Jose E. Blanco* Director December 15, 1998
- ----------------------
Jose E. Blanco
/s/ Rodney H. Brady* Director December 15, 1998
- -----------------------
Rodney H. Brady
/s/ Charles C. Edwards, M.D.* Director December 15, 1998
- ----------------------------
Charles C. Edwards, M.D.
II - 5
<PAGE>
Signature Title Date
- --------- ----- ----
/s/ Charles J. Lee* Director December 15, 1998
- ----------------------
Charles J. Lee
/s/ George R. Liddle* Director December 15, 1998
- ------------------------
George R. Liddle
/s/ James R. Mellor* Director December 15, 1998
- -----------------------
James R. Mellor
/s/ George E. Reinhardt, Jr.* Director December 15, 1998
- -------------------------------
George E. Reinhardt, Jr.
/s/ Francis G. Rodgers* Director December 15, 1998
- --------------------------
Francis G. Rodgers
*By: /s/ Milan A. Sawdei
-----------------------------
Milan A. Sawdei,
Attorney-in-Fact
II - 6
<PAGE>
BERGEN BRUNSWIG CORPORATION
---------------------------
INDEX TO EXHIBITS
-----------------
EXHIBIT NO. PAGE NO.
- ----------- --------
4.1 Restated Certificate of Incorporation of Bergen Brunswig II -8
Corporation dated November 13, 1998.
4.2 By-laws of Bergen Brunswig Corporation, as amended and II - 22
restated, dated November 13, 1998
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. II - 47
23.2* Consent of Lowenstein Sandler PC is included in Exhibit
5.1.
24.1* Power of Attorney.
- -------------------------------
* Previously filed.
II - 7
Exhibit 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
BERGEN BRUNSWIG CORPORATION
Pursuant to the provisions of Section 14A:9-5(2) of the New Jersey
Business Corporation Act, the undersigned Corporation adopts the following
Restated Certificate of Incorporation.
ARTICLE I
The name of the Corporation is Bergen Brunswig Corporation.
ARTICLE II
The address of the current registered office in this State is 28
West State Street, in the City of Trenton, County of Mercer.
ARTICLE III
The name of the current registered agent therein and in the charge
thereof upon whom process against this Corporation may be served is Corporation
Trust Company.
ARTICLE IV
The number of directors constituting the current board of directors
is 11. The names and addresses of the current directors are as follows:
Jose E. Blanco, Sr. George R. Liddle
J.M. Blanco, Inc. 595 Oakfield Lane
Lot 21 D Street Menlo Park, CA 94025
Amelia Industrial Part
Guaynabo, PR 00968 Robert E. Martini
Bergen Brunswig Corporation
Dr. Rodney H. Brady 4000 Metropolitan Drive
Deseret Management Orange, CA 92868
Corporation
Eagle Gate Tower James R. Mellor
60 East South Temple General Dynamics Corporation
Suite 575 3190 Fairview Park Drive
Salt Lake City, UT 84111 Falls Church, VA 22042
B2547/152
12/14/98 EXT4-1.DOC
II - 8
<PAGE>
Neil F. Dimick George E. Reinhardt, Jr.
Bergen Brunswig Corporation 1709 Dalton Road
4000 Metropolitan Drive Palos Verdes Estates
Orange, CA 92868 Palos Verdes, CA 90274
Charles C. Edwards, M.D. Donald R. Roden
Scripps Research Institution Bergen Brunswig Corporation
10666 N. Torrey Pines Road 4000 Metropolitan Drive
Mail Drop TPC-16 Orange, CA 92868-3510
La Jolla, CA 02037
Francis G. Rodgers
Charles J. Lee 159 Pear Tree Point Road
400 Selby Lane Darien, CT 06820
Atherton, CA 94025
ARTICLE V
The objects for which this Corporation is formed are to engage in
any activity for which corporations may be organized under the New Jersey
Business Corporation Act.
ARTICLE VI
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.
The voting powers and designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
restrictions, or limitations thereof are as follows:
A. Preferred Stock. The Board of Directors is hereby authorized to
divide the preferred stock into one or more series, to determine the designation
of and the number of shares of any series, to determine the relative rights,
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<PAGE>
preferences and limitations of the shares of any class or of any series. All
those determinations may be made by an amendment to this Certificate of
Incorporation adopted by the Board of Directors. That amendment may fix the
designations, preferences and relative participating, optional and other special
rights and the qualifications, limitations and restrictions of such series,
including the following:
1. The number of shares constituting that series;
2. The rate and times at which, and the terms and conditions on
which, dividends on preferred stock of that series will be paid;
3. Provisions making dividends payable with respect to preferred
stock of that series cumulative, non-cumulative or partially cumulative;
4. Provisions making dividends payable with respect to the preferred
stock of that series fully participating, partially participating, or
non-participating, and payable on a parity with subordinate or in preference to
the dividends payable on any other class or series;
5. The right, if any, of the holders of the preferred stock of that
series to convert the same into, or exchange the same for, shares of other
classes or series of stock of the Corporation and the terms and conditions of
that conversion or exchange, including provision for adjustment of the
conversion price or rate in such events as the Board of Directors shall
determine;
6. The redemption price or prices, if any, and the time or times at
which, and the terms and conditions on which, preferred stock of that series
many be redeemed;
7. The rights of the holders of preferred stock of that series upon
the voluntary or involuntary dissolution, liquidation or winding up of the
Corporation;
8. The terms or amount of any sinking fund provided for the purchase
or redemption of the preferred stock of that series; and
9. Provisions giving the preferred stock of that series special,
limited, multiple or no voting rights and specifying those voting rights, if
any.
B. Common Stock.
1. Dividends. Subject to the preferences and other rights of the
preferred stock as may be fixed in the amendment to this Certificate of
Incorporation, dividends (payable in cash stock or otherwise) may be declared
and paid out of funds legally available therefor upon any class of common stock
from time to time as may be determined by the Board of Directors.
Notwithstanding anything in this Certificate of Incorporation to the contrary,
however, those dividends may be declared and paid whether or not the net assets
II - 10
<PAGE>
of the Corporation remaining after such dividend payment are less than the
aggregate amount of the preferences of outstanding shares in the assets of the
Corporation upon liquidation.
2. Rights Upon Liquidation, Dissolution, or Winding Up. In the event
of any liquidation, dissolution, or winding up of the affairs of the
Corporation, after payment to the holders of preferred stock of the full amounts
to which they have a liquidation preference, the holders of all classes of
common stock shall be entitled to share ratably per share without regard to
class in all assets then remaining subject to distribution to the stockholders.
C. Voting Rights. At every meeting of the stockholders of the
Corporation, every holder of Class A Common Stock shall be entitled to one (1)
vote per share.
1. Election and Removal of Directors. The Board of Directors of the
Corporation shall consist of not more than 15 directors nor less than 9
directors, the exact number of directors within such limits to be fixed by the
Board of Directors as provided in the By-Laws. All directors shall serve until
their successors shall have been duly elected and shall have qualified.
Elections of directors need not be by ballot unless the By-Laws shall so
provide.
(a) Persons holding Class A Common Stock shall be entitled to
elect the directors. Those directors shall be divided into three
classes, each class to be as nearly equal to the other in number as
possible and the number of directors in each class to be specified
in the By-Laws. At each annual meeting of the stockholders of the
Corporation, the number of directors equal to the number of the
class whose term expires at the meeting shall be elected to hold
office until the third succeeding annual meeting.
(b) Any director may be removed at any time, either for or
without cause, by, and only by, the holders of record of Class A
Common Stock voting at a meeting of such stockholders called for the
purpose; any vacancy thus created may be filled at such meeting; and
any vacancy caused by the death or resignation of a director elected
by holders of Class A Common Stock may be filled only by holders of
Class A Common Stock at a meeting called for that purpose, or by a
majority of the remaining directors elected by those holders.
2. General Matters. Any resolution, motion or corporate action which
shall require the vote of the stockholders, other than one relating to the
election of directors, may be validly adopted, authorized or approved by the
affirmative vote of a majority of the votes cast by the holders of the Class A
Common Stock voting at that meeting.
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<PAGE>
D. Fractional Shares. The Corporation shall not be required to issue
any fractions of shares of Class A Common Stock. If any interest in a fractional
share of Class A Common Stock would otherwise be deliverable upon payment of any
stock dividend or in connection with any stock split or combination, or upon
conversion of any share or shares of preferred stock or other convertible
security, the Corporation shall make adjustment for that fractional share
interest by payment of an amount in cash equal to the same fraction of the
market value of a full share of Class A Common Stock of the Corporation. For
that purpose, the market value of a share of Class A Common Stock shall be the
last recorded sale price regular way of a share of that stock on the principal
national securities exchange on which the Class A Common Stock is listed or
admitted to trading on the record date for that stock dividend or the last
trading day before that stock split or combination shall become effective or the
last trading day before shares of preferred stock or other convertible security
are surrendered for conversion, or if there be no recorded sale price regular
way on such day, the last quoted bid price per share of the Class A Common Stock
on that exchange at the close of trading on that date. If the Class A Common
Stock shall not at such time be traded on a national securities exchange, the
market value of the Class A Common Stock shall be the then prevailing market
price of that stock on any other securities exchange or in the over-the-counter
market, as determined by the Corporation, which determination shall be
conclusive.
E. Preemptive Rights. No holder of stock of any class of the
Corporation shall have any preemptive right, as such stockholder, to purchase or
subscribe for, or to receive rights or warrants to purchase or subscribe for,
any shares of any class of stock of the Corporation, whether now or hereafter
authorized, which the Corporation may issue or sell, or any obligations which
the Corporation may issue or sell that shall be convertible into, or
exchangeable for, any shares of any class of stock of the Corporation.
F. Series A Junior Participating Preferred Stock. Pursuant to the
authority set forth in Article VI, Section A, the Board of Directors created a
series of Preferred Stock by resolution adopted on February 8, 1994. The
designation and amount thereof and the voting powers, preferences and relative
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall
be designated as "Series A Junior Participating Preferred Stock" and the number
of shares constituting such series shall be 400,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Junior Participating Preferred Stock with respect to dividends, the
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<PAGE>
holders of shares of Series A Junior Participating Preferred Stock in preference
to the holders of Class A Common Stock, par value $1.50 per share (the "Class A
Common Stock") shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and
December in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend
payable in shares of Class A Common Stock or a subdivision of the outstanding
shares of Class A Common Stock (by reclassification or otherwise), declared on
the Class A Common Stock since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the Corporation shall at any time
after February 18, 1994 (the "Rights Declaration Date") (i) declare any dividend
on the Common Stock payable in shares of Class A Common Stock, (ii) subdivide
the outstanding Class A Common Stock, or (iii) combine the outstanding Class A
Common Stock into a smaller number of shares, then in each such case the amount
to which holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Class A Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of A Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in Paragraph (A) above
immediately after it declares a dividend or distribution on the Class A Common
Stock (other than a dividend payable in shares of Class A Common Stock);
provided that, in the event no dividend or distribution shall have been declared
on the Class A Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend
of $1.00 per share on the Series A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
A Junior Participating Preferred Stock, unless the date of issue of such shares
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<PAGE>
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Junior Participating Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on the Common Stock
payable in shares of Class A Common Stock, (ii) subdivide the outstanding Class
A Common Stock, or (iii) combine the outstanding Class A Common Stock into a
smaller number of shares, then in each such case the number of votes per share
to which holders of shares of Series A Junior Participating Preferred Stock were
entitled, immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares of Class A
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Class A Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Junior Participating Preferred Stock and the holders of
shares of Class A Common Stock and any other capital stock of the Corporation
having general rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal
to six (6) quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period (herein called a
"default period") which shall extend until such time when all
accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all shares
of Series A Junior Participating Preferred Stock then outstanding
shall have been declared and paid or set apart for payment. During
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<PAGE>
each default period, all holders of Preferred Stock (including
holders of the Series A Junior Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6) quarterly
dividends thereon, voting as a class, irrespective of series, shall
have the right to elect two (2) Directors.
(ii) During any default period, such voting right of the
holders of Series A Junior Participating Preferred Stock may be
exercised initially at a special meeting called pursuant to
subparagraph (iii) of this Section 3(C) or at any annual meeting of
stockholders, and thereafter at annual meetings of stockholders,
provided that neither such voting right nor the right of the holders
of any other series of Preferred Stock, if any, to increase, in
certain cases, the authorized number of Directors shall be exercised
unless the holders of ten percent (10%) in number of shares of
Preferred Stock outstanding shall be present in person or by proxy.
The absence of a quorum of the holders of Common Stock shall not
affect the exercise by the holders of Preferred Stock of such voting
right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default
period, they shall have the right, voting as a class, to elect
Directors to fill such vacancies, if any, in the Board of Directors
as may then exist up to two (2) Directors or, if such right is
exercised at an annual meeting, to elect two (2) Directors. If the
number which may be so elected at any special meeting does not
amount to the required number, the holders of the Preferred Stock
shall have the right to make such increase in the number of
Directors as shall be necessary to permit the election by them of
the required number. After the holders of the Preferred Stock shall
have exercised their right to elect Directors in any default period
and during the continuance of such period, the number of Directors
shall not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with the Series A
Junior Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to
elect Directors, the Board of Directors may order, or any
stockholder or stockholders owning in the aggregate not less than
ten percent (10%) of the total number of shares of Preferred Stock
outstanding, irrespective of series, may request, the calling of a
special meeting of the holders of Preferred Stock, which meeting
shall thereupon be called by the President, a Vice-President or the
Secretary of the Corporation. Notice of such meeting and of any
annual meeting at which holders of Preferred Stock are entitled to
vote pursuant to this Paragraph (C)(iii) shall be given to each
holder of record of Preferred Stock by mailing a copy of such notice
to him at his last address as the same appears on the books of the
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<PAGE>
Corporation. Such meeting shall be called for a time not earlier
than 20 days and not later than 60 days after such order or request
or in default of the calling of such meeting within 60 days after
such order or request, such meeting may be called on similar notice
by any stockholder or stockholders owning in the aggregate not less
than ten percent (10%) of the total number of shares of Preferred
Stock outstanding. Notwithstanding the provisions of this Paragraph
(C)(iii), no such special meeting shall be called during the period
within 60 days immediately preceding the date fixed for the next
annual meeting of the stockholders.
(iv) In any default period, the holders of Class A Common
Stock, and other classes of stock of the Corporation if applicable,
shall continue to be entitled to elect the whole number of Directors
until the holders of Preferred Stock shall have exercised their
right to elect two (2) Directors voting as a class, after the
exercise of which right (x) the Directors so elected by the holders
of Preferred Stock shall continue in office until their successors
shall have been elected by such holders or until the expiration of
the default period, and (y) any vacancy in the Board of Directors
may (except as provided in Paragraph (C)(ii) of this Section 3) be
filled by vote of a majority of the remaining Directors theretofore
elected by the holders of the class of stock which elected the
Director whose office shall have become vacant. References in this
Paragraph (C) to Directors elected by the holders of a particular
class of stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the
holders of Preferred Stock as a class shall terminate, and (z) the
number of Directors shall be such number as may be provided for in
the certificate of incorporation or by-laws irrespective of any
increase made pursuant to the provisions of Paragraph (C)(ii) of
this Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the certificate of
incorporation or by-laws). Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Class A Common Stock as set forth herein) for taking any
corporate action.
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<PAGE>
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Series A Junior Participating Preferred Stock, except dividends
paid ratably on the Series A Junior Participating Preferred Stock
and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Junior Participating Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Junior
Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series A Junior Participating Preferred Stock, or any Shares of
stock ranking on a parity with the Series A Junior Participating
Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under Paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
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<PAGE>
Section 5. Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and restrictions on issuance
set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior Participating Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Class A Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph (C) below to reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Class A Common Stock) (such number in
clause (ii), the "Adjustment Number"). Following the payment of the full amount
of the Series A Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of Series A Junior Participating Preferred Stock and
Class A Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Class A Common Stock shall receive
their ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such Preferred Stock
and Class A Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Junior Participating Preferred Stock,
then such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences. In the
event, however, that there are not sufficient assets available to permit payment
in full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Class A Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Class A Common Stock payable in
shares of Class A Common Stock, (ii) subdivide the outstanding Class A Common
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<PAGE>
Stock, or (iii) combine the outstanding Class A Common Stock into a smaller
number of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such Adjustment
Number by a fraction the numerator of which is the number of shares of Class A
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Class A Common Stock that were outstanding
immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Class A Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case the shares
of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Class A Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Class A Common Stock payable in
shares of Class A Common Stock, (ii) subdivide the outstanding Class A Common
Stock, or (iii) combine the outstanding Class A Common Stock into a smaller
number of shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series A Junior
Participating Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Class A Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Class A Common Stock that were outstanding immediately prior
to such event.
Section 8. No Redemption. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating Preferred
Stock shall rank junior to all other series of the Corporation's Preferred Stock
as to the payment of dividends and the distribution of assets, unless the terms
of any such series shall provide otherwise.
Section 10. Amendment. The Restated Certificate of Incorporation of
the Corporation shall not be further amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Junior Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or more of the
outstanding shares of Series A Junior Participating Preferred Stock, voting
separately as a class.
Section 11. Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall entitle the
holder, in proportion to such holders fractional shares, to exercise voting
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<PAGE>
rights, receive dividends, participate in distributions and to have the benefit
of all other rights of holders of Series A Junior Participating Preferred Stock.
ARTICLE VII
Every person who is or was a director, officer, employee, or agent
of the Corporation, or of any corporation which he served as such at the request
of the Corporation, shall be indemnified by the Corporation to the fullest
extent permitted by law against all expenses and liabilities reasonably incurred
by or imposed upon him, in connection with any proceeding to which he may be
made, or threatened to be made, a party, or in which he may become involved by
reason of his being or having been a director, officer, employee or agent of the
Corporation, or of such other corporation, whether or not he is a director,
officer, employee or agent of the Corporation, or such other corporation, at the
time the expenses or liabilities are incurred.
ARTICLE VIII
So long as permitted by law, no director of the Corporation shall be
personally liable to the Corporation or its shareowners for damages for breach
of any duty owed by such person to the Corporation or its shareowners; provided,
however, that this Article VIII shall not relieve any person from liability to
the extent provided by applicable law for any breach of duty based upon an act
or omission (a) in breach of such person's duty of loyalty to the Corporation or
its shareowners, (b) not in good faith or involving a knowing violation of law
or (c) resulting in receipt by such person of an improper personal benefit. No
amendment to or repeal of this Article VIII and no amendment, repeal or
termination of effectiveness of any law authorizing this Article VIII shall
apply to or have any effect on the liability or alleged liability of any
director for or with respect to any acts or omissions of such director occurring
prior to such amendment, repeal or termination of effectiveness.
ARTICLE IX
So long as permitted by law, no officer of the Corporation shall be
personally liable to the Corporation or its shareowners for damages for breach
of any duty owed by such person to the Corporation or its shareowners; provided,
however, that this Article IX shall not relieve any person from liability to the
extent provided by applicable law for any breach of duty based upon an act or
omission (a) in breach of such person's duty of loyalty to the Corporation or
its shareowners, (b) not in good faith or involving a knowing violation of law
or (c) resulting in receipt by such person of an improper personal benefit. No
amendment to or repeal of this Article IX and no amendment, repeal or
termination of effectiveness of any law authorizing this Article IX shall apply
to or have any effect on the liability or alleged liability of any officer for
or with respect to any acts or omissions of such officer occurring prior to such
amendment, repeal or termination of effectiveness.
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<PAGE>
The foregoing Restated Certificate of Incorporation has been
executed on behalf of Bergen Brunswig Corporation this 13th day of November,
1998.
BERGEN BRUNSWIG CORPORATION
By: /s/ Robert E. Martini
---------------------------
Robert E. Martini, Chairman
ATTEST:
/s/ Milan A. Sawdei
- ------------------------------
Milan A. Sawdei, Secretary
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EXHIBIT 4.2
AMENDED AND RESTATED BY-LAWS
BERGEN BRUNSWIG CORPORATION
AS OF NOVEMBER 13, 1998
=======================
ARTICLE I
Office
------
Section 1. Principal Office. The principal office of the corporation is
----------------
hereby fixed and located at 4000 Metropolitan Drive, in the City of Orange,
County of Orange, and State of California. The board of directors is hereby
granted full power and authority to change said principal office to another
office within or without the State of California.
Section 2. Other Offices. Branch or subordinate offices may at any time
-------------
be established by the board of directors at any place or places where the
corporation is qualified to do business.
ARTICLE II
Meeting of Shareholders
-----------------------
Section 1. Place of Meetings. All meetings of shareholders shall be
------------------
held at the principal office of the corporation or at such other place as may be
designated by the board of directors or its executive committee and stated in
the notice of the meeting.
Section 2. Annual Meetings. An annual meeting of the shareholders of
----------------
the corporation shall be held on such day and at such hour as shall be fixed by
the board of directors and designated in the notice of the meeting.
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<PAGE>
Section 3. Special Meetings. Special meetings of the shareholders may
-----------------
be called for any purpose and at any time by the chairman of the board, the
president or by the board of directors or as provided in the certificate of
incorporation.
Section 4. Notice of Meetings. Written notice of the time, place and
------------------
purposes of annual and special meetings of shareholders shall be given to each
shareholder entitled to vote at such meeting at least ten (10) days and not more
than sixty (60) days before the date of such meeting, either personally or by
mail, charges prepaid, addressed to such shareholder at his address appearing on
the books of the corporation.
Section 5. Record Date. The board of directors shall fix the record
------------
date for determination of shareholders entitled to notice of and to vote at any
annual or special meeting of shareholders. Such record date shall not be more
than sixty (60) days nor less than ten (10) days before the date of such
meeting.
Section 6. Nominations of Directors and Proposals of Business To Be
------------------------------------------------------------
Considered. (a) Nominations of persons for election to the board of directors of
- ----------
the corporation and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (i) pursuant to
the corporation's notice of such annual meeting, (ii) by or at the direction of
the board of directors or (iii) by any shareholder of the corporation who was a
shareholder of record at the time of giving of the notice provided for in this
Article II, Section 6 and who is entitled to vote at the meeting, provided that
such shareholder has complied with the notice procedures set forth in this
Article II, Section 6.
(b) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (iii) of paragraph (a) of
this Article II, Section 6, the shareholder must have given timely notice
thereof in writing to the secretary of the corporation. To be timely, a
shareholder's notice shall be delivered to the secretary at the principal
executive offices of the corporation not less than sixty (60) days nor more than
II - 24
<PAGE>
ninety (90) days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than thirty (30) days or delayed by more than sixty
(60) days from such anniversary date, notice by the shareholder to be timely
must be so delivered not earlier than the ninetieth (90th) day prior to such
annual meeting and not later than the close of business on the later of the
sixtieth (60th) day prior to such annual meeting or the tenth (10th) day
following the day on which public announcement of the date of such meeting is
first made. Such shareholder's notice shall set forth (i) as to each person whom
the shareholder proposes to nominate for election or reelection as a director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (including, without limitation, such person's
name, address and principal occupation and such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected); (ii) as to any other business that the shareholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any financial or other interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (iii) as to
the shareholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (1) the name and address of such
shareholder, as they appear on the corporation's books, and of such beneficial
owner and (2) the class and number of shares of the corporation which are owned
beneficially and of record by such shareholder and such beneficial owner.
(c) Notwithstanding anything in the second sentence of paragraph (b) of
this Article II, Section 6 to the contrary, in the event that the number of
directors to be elected to the board of directors of the corporation is
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<PAGE>
increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased board of directors made by the
corporation at least seventy (70) days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice required by this Article
II, Section 6 shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to the
secretary at the principal executive offices of the corporation not later than
the close of business on the tenth (10th) day following the day on which such
public announcement is first made by the corporation.
(d) Only such persons who are nominated in accordance with the
procedures set forth in this Article II, Section 6 shall be eligible to serve as
directors and only such business shall be conducted at an annual meeting of
shareholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Article II, Section 6; provided, however, that
the presiding officer of the meeting may elect, for good cause shown, to waive
one or more of the procedures of this Article II, Section 6. The presiding
officer of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made in
accordance with the procedures set forth in this Article II, Section 6 and, if
any proposed nomination or business is not in compliance with this Article II,
Section 6 and the presiding officer elects not to waive such non-compliance, to
declare that such defective proposed business or nomination shall be
disregarded.
(e) For purposes of this Article II, Section 6, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(f) Notwithstanding the foregoing provisions of this Article II,
Section 6, a shareholder shall also comply with all applicable requirements of
II - 26
<PAGE>
the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Article II, Section 6. Nothing in this Article II,
Section 6 shall be deemed to affect any rights of shareholders to request
inclusion of proposals in the corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
Section 7. Quorum. Except as otherwise provided in the certificate of
------
incorporation, the presence in person or by proxy of the holders of a majority
of any class or series voting separately at a meeting and a majority of any two
or more classes voting together as a class at such meeting shall constitute a
quorum for the transaction of business; if any matter to come before the meeting
requires a vote of less than all the outstanding classes, then the presence in
person or by proxy of the holders of a majority of the class or classes or
series having the right to vote on such matter or matters shall constitute a
quorum for the transaction of such business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment notwithstanding the withdrawal of enough shareholders to leave
less than a quorum.
Section 8. Adjourned Meetings and Notice Thereof. Any shareholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares the holders of which
are either present in person or represented by proxy at such meeting, but in the
absence of a quorum no other business may be transacted at such meeting;
provided, however, that if a quorum of any class or series is present and
objects to such adjournment, the meeting shall not be adjourned.
When any shareholders' meeting, either annual or special, is adjourned
for more than thirty days, notice of the adjourned meeting shall be given as in
the case of an original meeting. If any such meeting is adjourned for thirty
days or less, however, and the time and place of the adjourned meeting is
announced at the meeting at which the adjournment is taken, and the only
business transacted at the adjourned meeting is such as might have been
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<PAGE>
transacted at the original meeting, no further notice of the adjourned meeting
need be given to shareholders. If after the adjournment, the board of directors
fixes a new record date for the adjourned meeting, however, a notice of the
adjourned meeting shall be given to each shareholder of record on the new record
date.
Section 9. Voting. Shareholders shall vote their stock in the manner
------
provided in the certificate of incorporation as amended from time to time.
Shares held by the corporation shall not be voted at any meeting of shareholders
for any purpose.
Section 10. Proxies. Every shareholder entitled to vote at a meeting of
-------
shareholders may authorize another person or persons to act for him by proxy.
Every proxy shall be executed in writing by the shareholder or his agent, except
that a proxy may be given by a shareholder or his agent by telegram or cable or
by any means of electronic communication which results in a writing. No proxy
shall be valid after eleven months from the date of its execution unless a
longer time is expressly provided therein. Unless it states that it is
irrevocable and is coupled with an interest either in the stock itself or in the
corporation, a proxy shall be revocable at will. A proxy shall not be revoked by
the death or incapacity of the shareholder but the proxy shall continue to be in
force until revoked by the personal representative or guardian of the
shareholder. The presence at a meeting of any shareholder who has given a proxy
does not revoke the proxy unless the shareholder files written notice of the
revocation with the secretary of the meeting prior to the voting of the proxy or
votes the shares subject to the proxy by written ballot. A person named in a
proxy as the attorney or agent of a shareholder may, if the proxy so provides,
substitute another person to act in his place, including any other person named
as an attorney or agent in the same proxy. The substitution shall not be
effective until an instrument effecting it is filed with the secretary of the
corporation.
II - 28
<PAGE>
Section 11. Officers of Meetings. The chairman of the board, if
----------------------
present, shall preside at all meetings of shareholders. In his absence, the
president, if present, shall preside. In his absence, the vice president of the
corporation who has held that office for the longest period of those present at
the meeting shall preside. The secretary of the corporation shall, if present,
act as secretary of all meetings of shareholders. In his absence, any assistant
secretary of the corporation who is present shall act as secretary of the
meeting. If no assistant secretary is present, a temporary secretary for that
particular meeting shall be elected.
Section 12. Order of Business. The order of business at all meetings of
-----------------
the shareholders, unless changed by a majority vote of the shares entitled to
vote at such meeting, shall be as follows: (i) call to order; (ii) proof of
mailing of notice of meeting, proxy and proxy statement; (iii) report on
presence of a quorum; (iv) reading or waiver of minutes of preceding meeting;
(v) election of directors; (vi) vote on other proposals; (vii) report of
officers; and (viii) other business and adjournment.
Section 13. Voting List. The secretary or any assistant secretary shall
-----------
produce at each shareholders' meeting a list of shareholders entitled to vote at
the meeting or any adjournment thereof. Such list shall (a) be arranged
alphabetically within each class and series, with the address of, and the number
of shares held by, each shareholder, (b) be subject to the inspection of any
shareholder for reasonable periods during the meeting, and (c) be prima facie
evidence as to persons who are the shareholders entitled to examine such list or
to vote at the meeting.
Section 14. Action by Shareholders Without a Meeting. In order that the
----------------------------------------
corporation may determine the shareholders entitled to consent to corporate
action in writing without a meeting pursuant to Section 14A:5-6 of the New
Jersey Business Corporation Act, any shareholder of record seeking to have the
shareholders authorize or take corporate action by written consent shall, by
written notice to the secretary, request that the board of directors set a
record date. Upon receipt of such written notice, or in the absence of such
II - 29
<PAGE>
written notice at any time at its election, the board of directors may, as it
deems appropriate and in the best interests of the corporation, adopt a
resolution setting a record date for purposes of determining the shareholders
entitled to consent to corporate action in writing without a meeting. Any record
date set by the board of directors pursuant to this Section 14 shall not
precede, and shall not be more than ten (10) days after, the date on which the
resolution setting the record date is adopted by the board of directors.
ARTICLE III
Board of Directors
------------------
Section 1. Number of Directors. The board of directors of the
---------------------
corporation shall be composed of not less than nine (9) nor more than fifteen
(15) until changed by an amendment of the certificate of incorporation duly
adopted by the shareholders of the corporation.
The board of directors, following the adoption of these amended
by-laws, shall consist of eleven (11) members and one Director Emeritus. The
number of directors may be increased or decreased within the foregoing
limitations by an amendment to this Section 1 of Article III duly adopted by the
board of directors.
Section 2. Term of Office; Classification of Directors. The board shall
-------------------------------------------
be divided into three classes, which shall be denominated Classes I, II and III,
respectively. The number of directors in each class shall be as nearly equal as
possible
At each meeting of shareholders, directors shall be elected to fill the
directorships of the Class of directors whose terms have expired. Those
directors shall hold office until the third successive annual meeting of
shareholders after their election and until their successors shall have been
elected and qualified, so that directors elected at annual meetings of
shareholders shall each be elected for a three year term, and that the term of
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<PAGE>
one class of directors shall expire at each annual meeting.
Section 3. Resignation and Removal. Any director may resign at any
-------------------------
time. Any director may be removed with or without cause as provided in the
certificate of incorporation. A special meeting for the purpose of removing a
director may be called for by the chairman of the board, the president or the
board of directors. Notice of such meeting shall be given to all the
shareholders of Class A Common Stock in the manner provided by these by-laws for
any annual or special meeting. A new director to fill the vacancy caused by
resignation or removal may be elected at the special meeting called for the
purpose of removing such director, at any subsequent annual or special meeting
of shareholders, or by the board of directors. If such director is elected at a
special meeting of shareholders, he shall serve until the term of the removed
director would have expired and thereafter until his successor shall have been
elected and qualified.
Section 4. Vacancies. If any vacancy should occur in the board of
---------
directors for any reason whatsoever, such vacancy may be filled by a majority of
the remaining directors. Each director so elected shall hold office until the
next succeeding annual or special meeting of the shareholders and thereafter
until his successor shall have been elected and qualified.
A vacancy or vacancies in the board of directors shall be deemed to
exist in the case of the death, resignation or removal of any director, or if
the authorized number of directors be increased, or if the shareholders fail at
any special meeting of the shareholders at which any director or directors are
elected to elect the authorized number of directors to be voted for at that
meeting. No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his term of office.
Subject to the provisions of the certificate of incorporation, the
shareholders may elect a director or directors at any time to fill any vacancy
II - 31
<PAGE>
or vacancies not filled by the directors. If the board of directors accepts the
resignation of a director tendered to take effect at a future time, the board or
the shareholders shall have the power to elect a successor to take office when
the resignation is to become effective.
If the chairman of the board, the president or the board of directors
shall so direct, the secretary shall promptly call a special meeting of
shareholders to elect a director to fill such vacancy. Any director so elected
shall hold office for a term which is not inconsistent with Section 2 of Article
III of these by-laws, and thereafter until his successor shall have been elected
and qualified.
If a vacancy of all directors shall occur, the president or secretary
shall promptly call a special meeting of the shareholders to elect directors to
fill such vacancies. The persons so elected shall hold office until the next
annual meeting of shareholders and thereafter until their respective successors
shall have been elected and qualified.
Section 5. Place of Meeting. The board of directors may hold its
-----------------
meetings at such place or places within or without the State of New Jersey as
the board may from time to time determine.
Section 6. Regular Meetings. Regular meetings of the board of directors
----------------
shall be held on such day in March or April, June or July and September or
October as shall be determined from time to time by the board, at 10:00 a.m. or
at such other time designated by the board on such day; provided, however, that
should said day fall upon a legal holiday, then any such meeting shall be held
at the same hour and place on the next succeeding day which is not a legal
holiday. A fourth regular meeting of the board of directors shall take place
immediately following the conclusion of the annual meeting of shareholders. At
the regular meeting of the board held immediately following the annual meeting
of shareholders, the board of directors shall organize and elect officers.
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<PAGE>
Section 7. Special Meetings. Special meetings of the board of directors
----------------
for any purpose or purposes may be called at any time by the chairman of the
board, the president, or by any three (3) directors.
Section 8. Notice of Meetings. Notice of the place of each regular
-------------------
meeting of the board, and notice of the time and place of each special meeting
of the board, shall be given in writing to each director either by hand
delivery, facsimile transmission, mail or national courier service such as
Federal Express, to the address or facsimile number, as the case may be, of such
director as shown upon the records of the corporation. If such notice is
delivered by hand or by facsimile transmission, it shall be delivered or
transmitted, as the case may be, at least twenty-four (24) hours prior to the
time of the holding of the meeting. If such notice is delivered by mail or
national courier service, it shall be sent either by overnight mail or national
courier service (next day delivery), in which case it shall be deposited with
the overnight mail or national courier service at least two days prior to the
time of the holding of the meeting, or by airmail, in which case it shall be
deposited in the United States Mails at least one week prior to the time of the
holding of the meeting. Such hand delivery, facsimile transmission, mailing or
national courier service delivery, as above provided, shall be due, legal and
personal notice to such director.
Section 9. Waiver of Notice and Consent. The transactions of any
------------------------------
meeting of the board, however called and noticed or wherever held, shall be as
valid as though such meeting had been duly held after a regular call and notice,
if a quorum be present and if, before or after the meeting, each of the
directors not present signs a written waiver of notice or a consent to the
holding of such meeting or an approval of the minutes thereof. All such waivers,
consents or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Section 10. Action without Meeting. Any action required or permitted to
----------------------
be taken by the board of directors by law or these by-laws may be taken without
II - 33
<PAGE>
a meeting, if, prior or subsequent to such action, all members of the board
shall individually or collectively consent in writing to such action. Each such
written consent or consents shall be filed with the minutes of the proceedings
of the board. Such action by written consent shall have the same force and
effect as a unanimous vote of such directors, for all purposes.
Section 11. Quorum. A majority of the entire board of directors shall
------
constitute a quorum for the transaction of business.
Section 12. Voting. Every act or decision done or made by a majority of
------
the directors present at a meeting duly held at which a quorum is present shall
be regarded as the act of the board of directors. In determining the presence of
a quorum and the result of a vote taken by the board, no distinction shall be
made among the directors with respect to the class or classes or series of
shareholders which elected them.
Section 13. Presiding Officer. The chairman of the board shall preside
-----------------
at all meetings of the board at which he is present. In the absence of the
chairman of the board, the president shall preside. If the secretary of the
corporation or any assistant secretary is present, he shall record the minutes
of the meeting, and if neither of them is present the board shall designate a
secretary to record the minutes of the meeting.
Section 14. Adjournment. A quorum of the directors may adjourn any
-----------
directors' meeting to meet again at a time and place fixed in the resolutions
adjourning such meeting, and no notice of the time and place of the adjourned
meeting need be given if the period of adjournment does not exceed ten days in
any one adjournment. A meeting of directors at which less than a quorum is
present may also be adjourned until the next regular meeting of the board.
Section 15. Directors Emeritus. The title of director emeritus may be
-------------------
conferred by the board of directors upon any former director of the corporation
or of a corporation acquired by the corporation who, in the judgment of the
board, has brought credit and distinction to this corporation, or such acquired
corporation, through long and faithful service. The title hereby created is
II -34
<PAGE>
honorary only and does not carry with it the powers, duties or obligations of a
director of this corporation or any other power, duty or obligation. The title
may be conferred upon as many persons as the board deems appropriate. A director
emeritus shall not be deemed a director or member of the board of directors but
may attend meetings of the board and, upon invitation of the chairman, may take
part in the deliberative proceedings of the board, but may not vote.
Section 16. Fees and Compensation. Directors shall receive for
-----------------------
attendance at each regular or special meeting of the board a fixed sum and
expenses of attendance, if any, and an annual fee for service as a director,
such as may be allowed by resolution of the board. The board of directors may,
if it so desires, fix one fee for directors who are officers or employees of the
corporation (or who are receiving retirement benefits from it or a subsidiary or
under a pension trust of a subsidiary) and a higher fee for other directors.
Nothing herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
Committees
----------
Section 1. Establishment of Committees. The board of directors may, by
---------------------------
resolution adopted by a majority of the entire board, designate an executive
committee, consisting of the chairman of the board, the chief executive officer
and two (2) or more other directors, and may at any time designate additional
committees, each of which shall consist of two (2) or more directors. Subject to
the limitations contained in Section 8 of this Article IV, the executive
committee shall have the maximum authority permitted by law in effect at the
time of the exercise of such authority and each other committee shall have such
authority, not exceeding the authority of the executive committee, as is
provided by the board of directors in the resolutions creating such committee.
II - 35
<PAGE>
Section 2. Presiding Officer and Secretary. The chief executive officer
-------------------------------
shall be chairman of the executive committee. In the absence of the chief
executive officer, one of the other directors shall be selected by the committee
to preside. Each other committee shall choose one of its members to act as
chairman. Each committee shall from time to time designate a secretary of the
committee who shall keep a record of its proceedings.
Section 3. Vacancies. Vacancies occurring from time to time in the
---------
membership of any committee may be filled by a majority of the entire board for
the unexpired term of the member whose death, resignation, removal or disability
causes such vacancy, and shall be so filled, if, as the result of such vacancy,
there shall be less than three (3) directors on the executive committee or less
than two (2) directors on any other committee, or, in the case of the executive
committee, if the chief executive officer should be the one whose death,
resignation, removal or disability causes such vacancy.
Section 4. Meetings. Each committee shall adopt its own rules of
--------
procedure and shall meet at such stated time as it may, by resolution, appoint,
and shall also meet whenever called together by the chairman of the board or the
chief executive officer.
Section 5. Notice of Meetings. If the committee established regular
------------------
meeting dates, it shall not be necessary to give notice of any such regular
meeting. Notice of every special meeting shall be given in the manner and within
the time periods specified in Section 8 of Article III with respect to notices
of special meetings of the board of directors. Notice of any special meeting may
be waived in writing by all of the absent members of the committee either before
or after the meeting.
Section 6. Quorum. A quorum at any meeting of any committee shall be
------
not less than one-half (1/2) of the entire committee. In the case of the
executive committee, however, a quorum shall be not less than three (3) members.
Every act or decision done or made by a majority of the directors present at a
committee meeting duly held at which a quorum is present shall be regarded as
the act of the committee.
II - 36
<PAGE>
Section 7. Reports. Actions taken at a meeting of any committee shall
-------
be reported to the board at its next meeting following such committee meeting,
except that when the meeting of the board is held within two (2) days after the
committee meeting, such report shall, if not made at the first meeting, be made
to the board at the second meeting following such committee meeting.
Section 8. Limitation of Powers. No committee of the board of directors
--------------------
shall have authority to do any of the following:
(a) make, alter or repeal any by-law of the corporation;
(b) elect or appoint any director, or remove any officer or
director;
(c) submit to shareholders any action that requires
shareholders' approval;
(d) amend or repeal any resolution theretofore adopted by the
board which by its terms is amendable or repealable only by the
board;
(e) fix the compensation of any officer who is a member of the
committee for serving as an officer of the corporation.
Section 9. Additional Powers of the Board. The board shall have the
-------------------------------
power, with respect to existing committees, to
(a) fill any vacancy in any such committee;
(b) appoint one or more directors to serve as alternative
members of any such committee to act in the absence or
disability of members of any such committee with all the powers
of such absent or disabled members;
(c) abolish any such committee at its pleasure; and
(d) remove any director from membership on such committee at
any time, with or without cause.
II - 37
<PAGE>
ARTICLE V
Officers
--------
Section 1. Officers Enumerated. The Board of Directors shall designate
-------------------
and elect the officers of the corporation which shall include but shall not be
limited to a Chairman of the Board, a Chief Executive Officer, [ a President,]
two or more members of the office of the President, one or more Executive Vice
Presidents, Senior Vice Presidents and Vice Presidents, a Treasurer, one or more
Assistant Treasurers, a Secretary and one or more Assistant Secretaries. Any two
or more offices may be held by the same person, except that no officer shall
execute, acknowledge, or verify any instrument in more than one capacity as such
instrument is required by law or by the By-Laws to be executed, acknowledged, or
verified by two or more officers. The Chairman of the Board and the Chief
Executive Officer shall be directors. The office of the President shall
initially have four members, each of whom shall be an Executive Vice President
of the Corporation who shall have the duties and powers normally pertaining to
the President of the Corporation but shall be limited to those divisions or
subsidiaries for which he or she is responsible.
Section 2. Additional Officers. The board of directors may from time to
-------------------
time elect such other officers as it shall deem necessary, who shall hold their
offices for such terms and have such powers and perform such duties as shall be
prescribed from time to time by the board.
Section 3. Election and Term of Office. Each officer shall hold office
---------------------------
until the next annual election of officers, and until his successor has been
elected and qualified, unless he is earlier removed. All officers of the
corporation shall hold office at the pleasure of the board of directors.
Section 4. Vacancies. Any vacancy in an enumerated office or in any
---------
other office may be filled by the board of directors.
II - 38
<PAGE>
Section 5. Removal and Resignation. Any officer may be removed, either
-----------------------
with or without cause, by a majority of the directors at any regular or special
meeting of the board or by any officer upon whom such power of removal may be
conferred by the board. Removal of an officer shall be without prejudice to his
or her contract rights, if any. Election to a corporate office shall not, in and
of itself, create contractual rights. Any officer may resign at any time by
giving written notice to the board or to the president. Any such resignation
shall take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 6. Powers and Duties. The officers shall each have such
-------------------
authority and perform such duties in the management of the corporation as from
time to time may be prescribed by the board of directors or the executive
committee and as may be delegated by the chairman of the board or the Chief
Executive Officer.
Without limiting the foregoing,
(a) Chairman of the Board. The Chairman of the Board shall preside at
---------------------
all meetings of shareholders and at all meetings of the directors. He shall
generally possess such powers and perform such duties as usually pertain to the
office of the Chairman and to the office of the Chief Executive Officer.
(b) Chief Executive Officer. The Chief Executive Officer of the
-------------------------
Corporation shall, subject only to the direction and control of the Chairman of
the Board and the Board of Directors, have general charge of, supervision over
and responsibility for the business and affairs of the Corporation. The Chief
Executive Officer shall generally possess such powers and perform such duties as
usually pertain to the office of a President of a New Jersey business
corporation. In the absence of the Chairman of Board, the Chief Executive
Officer shall preside at all meetings of Shareholders and of the Board of
Directors.
II - 39
<PAGE>
(c) President. The president shall generally possess such powers and
---------
perform such duties as usually pertain to the office of the president of a New
Jersey business corporation, including power to supervise the business and
activities of the corporation and to instruct, direct and control its other
officers, agents and employees, and shall perform such other duties as the
chairman of the board or the chief executive officer shall direct. In the
absence of the chairman of the board and the chief executive officer, he shall
preside at all meetings of shareholders and of the board of directors.
(d) Members of the Office of the President. Each member of the Office
---------------------------------------
of the President shall generally possess such powers and perform such duties as
usually pertain to the Office of the President but shall be limited to the
divisions or businesses for which he or she has responsibility. Such powers and
duties shall include the power to supervise the businesses and activities of
such divisions and to instruct, direct and control the other officers, agents
and employees of those divisions and to perform such other duties as the
Chairman of the Board or the Chief Executive Officer shall direct.
(e) Vice President. The corporation shall have one or more vice
---------------
presidents as determined by the board of directors. The board of directors may
designate one or more of such vice presidents as executive vice president or
senior vice president. All vice presidents shall have such authority and shall
perform such duties as may be delegated from time to time by the chairman of the
board, the chief executive officer or the board of directors. Unless otherwise
ordered by the board of directors, any vice president may sign contracts or
other instruments authorized either generally or specifically by the board of
directors.
(f) Secretary. The secretary or any assistant secretary shall cause
---------
notices of all meetings to be served as prescribed in these by-laws and shall
keep the minutes of all meetings of the shareholders, board of directors and all
committees of the board of directors or shareholders, and shall have charge of
the seal of the corporation. He shall perform such other duties and possess such
other powers as pertain to his office or as are assigned to him by the chairman
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<PAGE>
of the board, the chief executive officer, the president or the board of
directors.
(g) Treasurer. The treasurer shall have the custody of the funds and
---------
securities of the corporation and shall keep or cause to be kept regular books
of account for the corporation. He shall account to the chairman of the board,
the chief executive officer or the board of directors whenever they may require
concerning all his transactions as treasurer and concerning the financial
condition of the corporation. The treasurer shall perform such other duties and
possess such other powers as are incident to his office or as shall be assigned
to him by the chairman of the board, the chief executive officer, or the board
of directors.
(h) Controller. The Controller shall have the immediate responsibility
----------
for the corporation's accounting practices, maintenance of its fiscal records,
preparation of its financial reports and the responsibility for general
accounting, cost accounting and budgetary controls functions of the corporation.
He shall be under the broad administrative direction of the Vice President,
Financial and Chief Financial Officer, and shall perform such other duties and
possess such other powers as are incident to his office or as shall be assigned
to him by the chairman of the board, the chief executive officer, or the board
of directors.
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<PAGE>
ARTICLE VI
Capital Stock and Other Securities
----------------------------------
Section 1. Issuance of Stock and Other Securities. Certificates of any
--------------------------------------
class of capital stock of the corporation and certificates representing any
other securities of the corporation shall be signed by the president or any vice
president and may be countersigned by the secretary or the treasurer or the
assistant secretary. Any or all signatures upon a certificate may be a
facsimile. Such certificates shall be sealed with the seal of the corporation,
or shall bear a facsimile of such seal; and such certificates shall be
registered in such manner as the board of directors may by resolution prescribe.
Section 2. Lost, Stolen and Destroyed Certificates. In case of lost,
-----------------------------------------
stolen or destroyed certificates, new certificates may be issued to take their
place upon receipt by the corporation of such bond of indemnity and under such
regulations as shall be prescribed by the board of directors, but the giving of
a bond of indemnity may be waived by the board.
Section 3. Transfer of Securities. Shares of capital stock or any other
----------------------
registered securities of the corporation shall be transferable on the books of
the corporation by the holder thereof in person or by his authorized attorney
upon surrender for cancellation to the transfer agent for such security of an
outstanding certificate or certificates for the same number of shares or other
security with an assignment and authorization to transfer endorsed thereon or
attached thereto, duly executed, together with such proof of the authenticity of
the signature and of the power of assignor to transfer such securities as the
corporation or its agents may require.
Section 4. Record Date for Dividends or Rights. The board of directors
-----------------------------------
may fix a record date in advance as of which shares of stock shall be held of
record to entitle a shareholder to the payment of any dividend, to the allotment
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<PAGE>
of rights, or to exercise rights in respect to any change, conversion or
exchange of capital stock of the corporation. Such record date shall not precede
by more than sixty (60) days the date of such dividend payment, or such
allotment of rights, or the date when such change, conversion or exchange of
capital stock shall take effect. Only shareholders of record on such record date
shall be entitled to receive or exercise such rights or benefits when they shall
accrue, notwithstanding any transfer of any stock on the books of the
corporation subsequent to the record date which is fixed.
Section 5. Issue of New Shares or Sale of Treasury Stock. Shares of the
---------------------------------------------
capital stock of the corporation which have been authorized but not issued and
treasury shares may be issued or sold from time to time and for such
consideration as may be determined by the board of directors.
ARTICLE VII
Corporate Seal
--------------
Section 1. Form and Use. The corporate seal shall have inscribed
------------
thereon the name of the corporation, the year of its incorporation, and the
words "Corporate Seal, New Jersey". The seal may be used by causing it or a
facsimile thereof to be impressed or reproduced on a document or instrument, or
affixed thereto.
ARTICLE VIII
Fiscal Year
-----------
Section 1. Time. The fiscal year of the corporation shall commence on
----
October 1 of each calendar year.
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<PAGE>
ARTICLE IX
Amendments
----------
Section 1. Amendments by Shareholders. These by-laws may be altered,
---------------------------
amended or repealed and new by-laws may be added by the shareholders.
Section 2. Amendments by the Board of Directors. Subject to the right
------------------------------------
of the shareholders provided in Section 1 of this Article IX to adopt, amend or
repeal the by-laws, the board of directors may adopt, amend or repeal these
by-laws; provided, however, that a by-law or amendment thereto changing the
number of directors may be adopted, amended or repealed by the board of
directors only for the purpose of fixing the exact number of directors within
the limits specified in Article III, Section 1, hereof.
ARTICLE X
Miscellaneous
-------------
Section 1. Checks, Drafts, Etc. All checks, drafts or other orders for
---------------------
the payment of money, notes or other evidences of indebtedness, issued in the
name of or payable to the corporation, shall be signed or endorsed by such
person or persons and in such manner, manually or by facsimile signature, as
shall be determined from time to time by the board of directors.
Section 2. Execution of Contracts. The board of directors may authorize
----------------------
any officer or officers, agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances and, unless so
authorized by the board of directors, no officer, agent or employee shall have
any power or authority to bind the corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or for any amount.
Section 3. Voting Shares of Other Corporations. The chairman of the
-------------------------------------
board, the chief executive officer or any vice president is hereby authorized to
vote, represent and exercise on behalf of this corporation all rights incident
to any and all shares of stock of any other corporation or corporations standing
in the name of this corporation. The authority herein granted may be exercised
on behalf of the corporation by such officers either in person or by proxy.
Section 4. Employee Benefit Plans. The corporation, by resolution of
----------------------
the board of directors, may adopt any one or more of the following plans for the
benefit of some or all employees, as hereinafter defined, and their families,
dependents or beneficiaries:
(a) plans providing for the sale or distribution of its shares
of any class or series, held by it or issued or purchased by it
for the purpose, including stock option, stock purchase, stock
bonus, profit-sharing, savings, pension, retirement, deferred
compensation and other plans of similar nature, whether or not
such plans also provide for the distribution of cash or
property other than its shares;
(b) plans providing for payments solely in cash or property
other than shares of the corporation, including profit-sharing,
bonus, savings, pension, retirement, deferred compensation and
other plans of similar nature; and
(c) plans for the furnishing of medical service, life,
sickness, accident, disability or unemployment insurance or
benefits; education; housing, social and recreational service;
and other similar aids and services.
The term "employees" as used in this Section means employees, officers,
directors, and agents of the corporation or any subsidiary thereof, or other
persons who are or have been actively engaged in the conduct of the business of
the corporation or any subsidiary thereof, including any who have retired,
become disabled or died prior to the establishment of any plan heretofore or
hereafter adopted.
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<PAGE>
Section 6. Director Loans. The corporation may lend money to or
---------------
guarantee any obligation of, or otherwise assist any director of the corporation
or of any subsidiary, whenever, in the judgment of the board of directors, such
loan, guarantee or assistance may reasonably be expected to benefit the
corporation. Any such loan, guarantee or other assistance may be made only when
authorized by a majority of the entire board of directors and may be made with
or without interest and whether unsecured or secured in such manner as the board
shall approve, including, without limitation, by a pledge of shares of the
corporation, and may be made upon such other terms and conditions as the board
may determine. A director shall be disqualified from voting on any loan,
guarantee or other assistance proposed to be made to him or her pursuant to this
section. The statutory power of the board of directors to make such loans and
guarantees and to provide other assistance to employees of the corporation other
than directors shall not in any way be limited to this section.
By order of the board of directors of Bergen Brunswig Corporation
this_____day of November, 1998.
Secretary
[ Seal ]
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 2 to the Registration Statement No. 333-63441 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 "Experts" in the Prospectus,
which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Costa Mesa, California
December 16, 1998
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