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