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As filed with the Securities and Exchange Commission on October 19, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
FOXMEYER HEALTH CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 25-1425889
(State or Other Jurisdiction (I.R.S. Employer Identification
of Incorporation or No.)
Organization)
1220 Senlac Drive
Carrollton, Texas 75006
(214) 446-4800
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
FoxMeyer Corporation Stock Option and Performance Award Plan
FoxMeyer Corporation Employees' Savings and Profit Sharing Program
FoxMeyer Health Corporation 1993 Stock Option and Performance Award Plan
(Full Title of Plan)
Kevin J. Rogan, Esq.
1220 Senlac Drive
Carrollton, Texas 75006
(214) 446-4800
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Stephen E. Jacobs, Esq.
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Class of Amount to be Offering Aggregate Amount of
Securities to be Registered Price Per Offering Registration
Registered (1) Unit (2) Price (2) Fee
<S> <C> <C> <C> <C>
Common Stock, par 6,000,000 16.06 $96,360,000 $33,227.59
value 5.00 per share
<FN>
(1) Of this number, 1,500,000 shares are being registered for issuance
pursuant to the FoxMeyer Corporation Stock Option and Performance Award
Plan, 500,000 shares are being registered for issuance pursuant to the
FoxMeyer Corporation Employees' Savings and Profit Sharing Program, and
4,000,000 shares are being registered for issuance pursuant to the
FoxMeyer Health Corporation 1993 Stock Option Performance Award Plan.
(2) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of 1933,
based upon the average of the high and low prices of the Common Shares as
reported on the New York Stock Exchange Composite Tape on October 12,
1994.
/TABLE
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*.
ITEM 2. REGISTRANT INFORMATION*.
____________________
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance
with the Note to Part 1 of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the registrant
with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference and made a part hereof:
(a) Annual Report on Form 10-K for the fiscal year ended
March 31, 1994.
(b) Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1994.
(c) Joint Proxy Statement for the Annual Meeting of
Stockholders held October 12, 1994.
(d) Current Reports on Form 8-K, dated June 30, 1994,
October 11, 1994 and October 14, 1994, respectively.
(e) The description of FoxMeyer Health Corporation's common
stock which is contained in the Registration Statement
on Form S-3 filed under the Securities Act of 1933, as
amended (the "Securities Act"), on November 5, 1990,
File Number 33-37531, including any amendment or report
updating such description and the description which is
contained in the Registration Statement on Form S-4
filed under the Securities Act, on September 12, 1994,
File Number 33-55433, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date hereof and prior
to the filing of a post-effective amendment which indicates that all
the securities offered hereby have been sold or which deregisters all
such securities then remaining unsold shall be deemed to be
incorporated by reference into this Post-Effective Amendment and to be
a part hereof from the date of filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant is a Delaware corporation. Section 145 of
the Delaware General Corporation Law (the "DGCL") provides that a
Delaware corporation has the power to indemnify its officers and
directors in certain circumstances.
Subsection (a) of Section 145 of the DGCL empowers a
corporation to indemnify any director or officer, or former director
or officer, who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of his
service as director, officer, employee or agent of the corporation, or
his service, at the corporation's request, as a director, officer,
employee or agent of another corporation or enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding provided that such director or officer
acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interest of the corporation, and, with respect
to any criminal action or proceeding, provided that such director or
officer had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to
indemnify any director or officer, or former director or officer, who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the
fact that such person acted in any of the capacities set forth above,
against expenses (including attorneys' fees) actually or reasonably
incurred in connection with the defense or settlement of such action
or suit provided that such director or officer acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be
made in respect of any claim, issue or matter as to which such
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<PAGE>
director or officer shall be adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such director or officer is fairly
and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
Section 145 further provides that the extent a director or
officer of a corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) or (b) or in
the defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith; provided that
indemnification provided for by Section 145 or granted pursuant
thereto shall be deemed exclusive of any other rights to which the
indemnified party may be entitled; and empowers the corporation to
purchase and maintain insurance on behalf of a director or officer of
the corporation against any liability asserted against him or incurred
by him in any such capacity or arising out of the status as such
whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
In addition, Section 102(b)(7) of the DGCL permits Delaware
corporations to include a provision in their certificates of
incorporation eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, provided that such
provisions shall not eliminate or limit the liability of a director
(i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in
good faith or that involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payment of dividends or other
unlawful distributions, or (iv) for any transactions from which the
director derived an improper personal benefit.
The registrant's Restated Certificate of Incorporation
provides that a director of the registrant shall not be personally
liable to the registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (A) for
any breach of the director's duty of loyalty to the registrant or its
stockholders, (B) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (C)
under Section 174 of the DGCL or (D) for any transaction from which
the director derives an improper personal benefit. The registrant's
Restated Certificate of Incorporation further provides that to the
full extent permitted by Section 145 of the DGCL the registrant shall
indemnify directors and officers of the registrant.
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The registrant's by-laws provide that the registrant shall
indemnify its directors and officers against all reasonable expense
incurred by them in defending claims made or suits brought against
them as directors or officers and against all liability in such suits,
except in such cases as involve gross negligence or willful misconduct
in the performance of their duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
This Registration Statement includes the following Exhibits:
Exhibit
Number Description of Exhibits
------ -----------------------
4.1 Restated Certificate of Incorporation of the registrant and
all subsequent amendments thereto, except for the Amendment
thereto filed on October 12, 1994, (Filed as Exhibit 3-A to
the registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1993).*
4.2 Amendment to the Restated Certificate of Incorporation of
the registrant filed on October 12, 1994.
4.3 By-laws of the registrant (Filed as Exhibit 3-A to the
registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1991).*
4.4 FoxMeyer Corporation Stock Option and Performance Award Plan
(Filed as Exhibit 10.23 to FoxMeyer Corporation's
Registration Statement on Form S-4 (File No. 33-41697)).*
<PAGE>
<PAGE>
4.5 Amendment, dated as of November 21, 1991, to FoxMeyer
Corporation's Stock Option and Performance Award Plan (Filed
as Exhibit 4.3 to FoxMeyer Corporation's Registration
Statement on Form S-8 (File No. 33-51962)).*
4.6 FoxMeyer Health Corporation's 1993 Stock Option and
Performance Award Plan (Filed as Exhibit 10-A to the
registrant's Annual Report on Form 10-K for the fiscal year
ended March 31, 1994).*
4.7 FoxMeyer Corporation Employees' Savings and Profit Sharing
Program (Filed as Exhibit 10-D to FoxMeyer Corporation's
Annual Report on Form 10-K for the fiscal year ended March
31, 1994).*
4.8 First Amendment to the FoxMeyer Corporation Employees'
Savings and Profit Sharing Program.
23.1 Consent of Deloitte and Touche LLP, independent auditors.
24 Powers of Attorney of Board of Directors (included as part
of the signature page of this Registration Statement).
_______________
* Incorporated by reference.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
1. 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;
(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;
<PAGE>
<PAGE>
(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 (i) and (ii) do not apply if 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 section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
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.
4. The undersigned registrant hereby undertakes to submit the
FoxMeyer Corporation Employees' Savings and Profit Sharing Program and
any amendments thereto to the Internal Revenue Service (the "IRS") in
a timely manner and to make all changes required by the IRS in order
to qualify the FoxMeyer Corporation Employees' Savings and Profit
Sharing Program under Section 401 of the Internal Revenue Code of
1986, as amended to date.
5. 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 a 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.
6. That, insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and 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 such Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person in connection with the Securities
<PAGE>
<PAGE>
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, 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
Dallas, State of Texas on the 19th day of October, 1994.
FOXMEYER HEALTH CORPORATION
By: /s/ Peter B. McKee
-------------------------------------
Name: Peter B. McKee
Title: Vice President and
Chief Financial Officer
<PAGE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT that each person whose
signature appears below on this Registration Statement hereby
constitutes and appoints Abbey J. Butler, Melvyn J. Estrin and Peter
B. McKee and each of them, with full power to act without the other,
his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for him and in his name, place and
stead, in any and all capacities (until revoked in writing), to sign
any and all amendments (including post-effective amendments thereto)
to this Registration Statement of FoxMeyer Health Corporation and all
documents relating thereto, and to file the same, with all exhibits
thereto, and other documents, in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-
fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite, necessary or advisable
to be done fully to all intents and purposes as he might or could do
in person thereby ratifying and confirming all that said attorney-in-
fact and agents or any of them, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Abbey J. Butler Co-Chairman of the Board October 19, 1994
----------------------- and Co-Chief Executive
Abbey J. Butler Officer (principal
executive officer)
/s/ Melvyn J. Estrin Co-Chairman of the Board October 19, 1994
----------------------- and Co-Chief Executive
Melvyn J. Estrin Officer (principal
executive officer)
/s/ Peter B. McKee Vice President and October 19, 1994
----------------------- Chief Financial Officer
Peter B. McKee (principal executive
officer)
/s/ Edward L. Massman Vice President and October 19, 1994
----------------------- Controller
Edward L. Massman
/s/ Sheldon W. Fantle Director October 19, 1994
-----------------------
Sheldon W. Fantle
<PAGE>
<PAGE>
/s/ Paul M. Finfer Director October 19, 1994
-----------------------
Paul M. Finfer
/s/ Alfred H. Kingon Director October 19, 1994
-----------------------
Alfred H. Kingon
/s/ William G. Tull Director October 19, 1994
-----------------------
William G. Tull
/s/ Thomas L. Anderson President and Director October 19, 1994
-----------------------
Thomas L. Anderson
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933,
the committee that administers the FoxMeyer Corporation Employees'
Savings and Profit Sharing Program has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized, in the City of Dallas, State of Texas, on this 18th day of
October, 1994.
FoxMeyer Corporation
Employees' Savings and
Profit Sharing Program
By: /s/ Thomas L. Anderson
---------------------------
Name: Thomas L. Anderson
Title: President and Chief
Operating Officer
By: /s/ Robert R. Brown
---------------------------
Name: Robert R. Brown
Title: Senior Vice President
and Chief Information Officer
By: /s/ Peter B. McKee
---------------------------
Name: Peter B. Mckee
Title: Senior Vice President
and Chief Financial Officer
By: /s/ Sandra K. Stevens
---------------------------
Name: Sandra K. Stevens
Title: Vice President of Human
Resources
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EXHIBIT INDEX
-------------
Page Number
in Sequentially
Exhibits Numbered
Number Description of Exhibits Document
------ ----------------------- -------------
4.1 Restated Certificate of Incorporation of the
registrant and all subsequent amendments
thereto, except for the Amendment thereto
filed on October 12, 1994, (Filed as Exhibit
3-A to the registrant's Annual Report on Form
10-K for the fiscal year ended March 31,
1993).*
4.2 Amendment to the Restated Certificate of
Incorporation of the registrant filed on
October 12, 1994.
4.3 By-laws of the registrant (Filed as Exhibit
3-A to the registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30,
1991).*
4.4 FoxMeyer Corporation Stock Option and
Performance Award Plan (filed as Exhibit
10.23 to FoxMeyer Corporation's Registration
Statement on Form S-4 (File No. 33-416970)).*
4.5 Amendment, dated as of November 21, 1991, to
FoxMeyer Corporation's Stock Option and
Performance Award Plan (Filed as Exhibit 4.3
to FoxMeyer Corporation's Registration
Statement on Form S-8 (File No. 33-51962)).*
4.6 FoxMeyer Health Corporation's 1993 Stock
Option and Performance Award Plan (Filed as
Exhibit 10-A to the registrant's Annual
Report on Form 10-K for the fiscal year ended
March 31, 1994)).*
4.7 FoxMeyer Corporation Employees' Savings and
Profit Sharing Program (Filed as Exhibit 10-D
to FoxMeyer Corporation's Annual Report on
Form 10-K for the fiscal year ended March 31,
1994).*
4.8 First Amendment to the FoxMeyer Corporation
Employees' Savings and Profit Sharing
Program.
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<PAGE>
23.1 Consent of Deloitte and Touche LLP,
independent auditors.
24 Powers of Attorney of Board of Directors
(included as part of the signature page of
this Registration Statement).
_____________
* Incorporated by reference.
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Exhibit 4.2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NATIONAL INTERGROUP, INC.
Under Section 242 of the General Corporation Law
------------------------------------------------
The undersigned, NATIONAL INTERGROUP, INC., a corporation
organized and existing under the General Corporation Law of Delaware
(the "Corporation"), pursuant to the provisions of Section 242 of the
Delaware General Corporation Law, hereby certifies that:
FIRST: The name of the corporation is NATIONAL INTERGROUP,
-----
INC. The name under which the Corporation was formed is National
Intergroup, Inc.
SECOND: The Restated Certificate of Incorporation of this
------
Corporation is hereby amended as follows:
1. to change the name of National Intergroup, Inc. to
"FoxMeyer Health Corporation." The FIRST Article of the Restated
Certificate of Incorporation is hereby amended to read in its entirety
as follows:
"FIRST: The name of the Corporation is
FoxMeyer Health Corporation"
IN WITNESS WHEREOF, the Corporation has caused its corporate
seal to be affixed hereto and this instrument to be signed in its name
by its Vice President and attested to by its Assistant Secretary this
12th day of October, 1994.
NATIONAL INTERGROUP, INC.
By:/s/ Peter B. McKee
-------------------------------------
Name: Peter B. McKee
Title: Vice President and
Chief Financial Officer
ATTEST:
By:/s/ Elizabeth T. Ching
------------------------
Name: Elizabeth T. Ching
Title: Assistant Secretary
(CORPORATE SEAL)
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Exhibit 4.8
FIRST AMENDMENT
TO THE
FOXMEYER CORPORATION EMPLOYEES'
SAVINGS AND PROFIT SHARING PROGRAM
WHEREAS, FoxMeyer Corporation (the "Company") restated the
FoxMeyer Corporation Employees' Savings and Profit Sharing Plan (the
"Plan") effective as of January 1, 1993; and
WHEREAS, the Company desires to clarify the Separate Funds
in which Members may direct the investment of their Individual
Accounts; and
WHEREAS, the Company desires to clarify a discrepancy in the
Plan with respect to the vesting and characterization of Employer
Discretionary Contributions in the allocation provisions; and
WHEREAS, the Company desires to conform the "alternate
Aggregate Limit" under the Multiple Use Limitation to applicable law;
and
WHEREAS, Article X of the Plan provides that the Company may
amend the Plan at any time;
NOW, THEREFORE, the Plan is hereby amended effective as of
January 1, 1993 as follows:
1. The definition in Section 1.40, Separate Fund(s), is
hereby amended by deleting such definition in its entirety and
replacing it with the following:
Any separate investment fund maintained by the
Trustees pursuant to the Trust Agreement
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effective as of February 1, 1990, which may include a money
market fund, a bond fund, an equity-income fund, a growth
and income fund and a "qualifying employer security" (within
the meaning of Section 407(d)(5) of ERISA) fund, which may
include such securities of the Company or any Affiliated
Entity.
2. The second sentence of Section 3.02(b) is hereby
deleted in its entirety.
3. The "alternate Aggregate Limit" defined in subparagraph
(d) of Section 3.04(e) is hereby amended by deleting the subparagraph
in its entirety and replacing it with the following:
Two plus the greater of the amount described in
(a)(i) or (a)(ii) above. However, in no event
shall this amount exceed 200 percent of the
greater of the amount in (c)(i) or (c)(ii) above.
In all other respects, the Plan is hereby ratified and
confirmed.
IN WITNESS WHEREOF, this Amendment to the Plan has been
executed this 18th day of October, 1994.
FOXMEYER CORPORATION
By: /s/ Sandra K. Stevens
------------------------------
Name: Sandra K. Stevens
Title: Vice President of
Human Resources
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of FoxMeyer Health Corporation (formerly known as National
Intergroup, Inc.) on Form S-8 of our reports dated May 11, 1994,
appearing in and incorporated by reference in the Annual Report on
Form 10-K of National Intergroup, Inc. for the year ended March 31,
1994.
Deloitte and Touche LLP
Dallas, Texas
October 19, 1994
