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U.S. Securities and Exchange Commission
Washington, D.C. 20549
Notice of Exempt Solicitation
submitted pursuant to Rule 14a-6(g)
1. Name of Registrant:
The Bergen Brunswig Corporation
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2. Name of person relying on exemption:
College Retirement Equities Fund
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3. Address of person relying on the exemption:
730 Third Avenue, New York, NY 10017
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4. Written materials. The following materials are attached:
Exhibit 1: Article published on Teachers Insurance and Annuity
Association - College Retirement Equities Fund's website.
Exhibit 2: Resolution to be proposed by Teachers Insurance and
Annuity Association - College Retirement Equities Fund at
the annual meeting of the shareholders.
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EXHIBIT 1
TIAA-CREF SiteLine Web Site Article
TIAA-CREF Fights Bergen Brunswig's Poison Pill
TIAA-CREF has written a letter to fellow shareholders of The Bergen Brunswig
Corporation (NYSE: BBC), asking them to support TIAA-CREF's shareholder
resolution requesting the Bergen board to redeem or put to shareholder vote the
company's "dead hand" poison pill defense. TIAA-CREF owns 2.1 million shares or
1.9 percent of Bergen's common stock.
Dead hand poison pills are a takeover defense which prevent an acquisition of a
company even if a majority of shareholders favor the acquistion. In contrast to
typical poison pills, which can be removed by newly-appointed directors who,
because of their support for an acquisition offer, are voted onto the board by
shareholders, dead hand poison pills can only be removed by incumbent directors
on the board before a proxy fight. Therefore, even if an existing board was
replaced with directors favoring an acquisition, it could not go through.
Bergen's proxy statement defense of its dead hand poison pill "misses the
point," said Peter C. Clapman, TIAA-CREF's senior vice president and chief
counsel, Investments, in the letter to fellow shareholders. TIAA-CREF's position
is based on the fact that Bergen "argues against the TIAA-CREF resolution mainly
by presenting the logic behind poison pills in general," rather than addressing
or defending the particular dead hand provision which TIAA-CREF contends
"ignores the will of shareholders by subverting the voting process."
As support for its position, TIAA-CREF informs shareholders that "dead hand
poison pills have been declared illegal in Delaware, the state in which the
majority of U.S. public companies are incorporated."
Seven out of ten companies to which TIAA-CREF submitted a similar resolution
this year have voluntarily agreed to remove their dead hand poison pill.
TIAA-CREF believes that this clearly shows that this particular type of poison
pill is contrary to good corporate governance, and therefore will not be
tolerated by shareholders.
Ken Bertsch, TIAA-CREF's director of corporate governance, is available to
answer shareholders' questions. He can be reached at (212) 916-4972. Media
inquiries can be e-mailed to Tom Pinto, TIAA-CREF's Media Relations Director, at
[email protected].
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EXHIBIT 2
CREF is proposing the following resolution at Bergen Brunswig's April 22, 1999,
annual meeting.
STOCKHOLDER PROPOSAL (Number 9 on the Bergen Proxy Card)
RESOLUTION
WHEREAS, the Company's Board of Directors, without shareholder
approval, has adopted a plan, commonly known as a "poison pill", with a "dead
hand" provision which permits only the board members that adopted the poison
pill to redeem the pill;
WHEREAS, this type of poison pill, unlike most poison pills, not only
allows the current Board to effectively thwart acquisition offers which may be
favored by a majority of shareholders, but also denies shareholders the right to
replace this Board with new directors empowered to redeem the poison pill,
permitting such offers to go forward;
WHEREAS, a "dead hand" poison pill has a coercive effect on the
shareholders' basic right to freely elect a new Board and also takes away normal
decision-making authority in this important area from a newly elected Board;
WHEREAS, such a "dead hand" poison pill interferes with good corporate
governance and can reduce the value of the company's shares to the detriment of
shareholders.
"RESOLVED, that the shareholders request that the Board of Directors:
Redeem the "dead hand" poison pill, unless approved by the affirmative
vote of a majority of shares of the Company entitled to vote at a meeting of
shareholders held as soon as practicable."
SUPPORTING STATEMENT
"By adopting the poison pill without shareholder approval, the current
Board unilaterally deprived shareholders of the traditional right to sell their
shares to potential bidders. By adding the "dead hand" feature, this Board also
denies appropriate decision making authority to a new Board, elected by
shareholders, to decide what is in the best interests of shareholders on this
important subject.
Traditional poison pills have been defended with the argument that
directors can generally be trusted to act in the shareholders' interest, and if
they do
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not, they can be replaced by the shareholders with other directors.
Adoption of the "dead hand" poison pills, however, is different. The
purpose is "entrenchment", by coercing shareholders into voting for incumbent
directors to preserve the possibility of redemption of the pill. Their intended
effect is to preclude proxy contests for corporate control, which are an
appropriate means to challenge incumbent management.
We believe that the right of shareholders freely to elect a board of
directors with full power to represent the shareholders' interests is the
foundation-stone of good corporate governance. Yet this Board has unilaterally
deprived shareholders of their only real protection against a board that acts
against their interests--the ability to freely elect a board of their choosing
with full powers to represent them in all respects. In our view, this Board by
its actions has violated its fiduciary responsibility to shareholders.
By supporting this resolution, shareholders can protect the value of
their investment by sending a message to Bergen that we value our right to elect
a Board that is prepared and able to represent shareholder interests on all
proper matters; and that we will not support unilateral actions by the Board
that restrict our ability to meaningfully exercise our voting rights."
