UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number: 0-11355
BINDLEY WESTERN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Indiana 84-0601662
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10333 North Meridian Street, Suite 300
Indianapolis, Indiana 46290
(Address of principal executive offices)
(Zip Code)
(317) 298-9900
(Registrant's telephone number,
including area code)
No Change
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes x No _________
The number of shares of Common Stock outstanding as of March 31, 1996 was
11,345,847.
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
BINDLEY WESTERN INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(000's omitted except share data)
(unaudited)
<TABLE>
Three-month period ended
March 31,
1996 1995
<S> <C> <C>
Revenues:
Net sales $ 1,188,988 $ 1,113,717
Other income 364 534
1,189,352 1,114,251
Cost and expenses:
Cost of products sold 1,159,562 1,086,709
Selling, general and administrative 17,081 15,672
Depreciation and amortization 1,634 1,572
Interest 3,271 3,186
1,181,548 1,107,139
Earnings before income taxes 7,804 7,112
Provision for income taxes 3,200 2,916
Net earnings $ 4,604 $ 4,196
Earnings per share:
Primary $ 0.39 $ 0.37
Fully diluted $ 0.35 $ 0.33
Average shares outstanding:
Primary 11,850,074 11,357,767
Fully diluted 15,247,299 14,886,240
(See accompanying notes to consolidated financial statements)
</TABLE>
BINDLEY WESTERN INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(000's omitted except share data)
(unaudited)
<TABLE>
March 31, December 31,
1996 1995
<S> <C> <C>
ASSETS
Current assets:
Cash $ 36,920 $ 34,819
Accounts receivable, less allowance for doubtful
accounts of $2,468 for 1996 and $3,057 for 1995 321,272 397,924
Finished goods inventory 303,024 332,054
Other current assets 8,887 7,964
670,103 772,761
Other assets 1,176 1,220
Fixed assets, at cost 70,931 59,468
Less: accumulated depreciation (18,850) (18,736)
52,081 40,732
Intangibles 38,732 29,390
TOTAL ASSETS $ 762,092 $ 844,103
LIABILITES AND SHAREHOLDERS' EQUITY
Current liabilities:
Short-term borrowings $ 113,500 $ 74,500
Accounts payable 365,431 491,844
Deferred income taxes (4,605) (4,605)
Other current liabilities 5,770 7,025
480,096 568,764
Long-term debt 70,870 69,473
Deferred income taxes 4,506 5,106
Shareholders' equity:
Common stock, $.01 par value authorized 30,000,000 shares;
issued 11,694,138 and 11,562,388 shares, respectively 3,315 3,313
Special shares, $.01 par value-authorized 1,000,000 shares
Additional paid in capital 89,200 87,707
Retained earnings 117,255 112,890
209,770 203,910
Less: 348,291 shares in treasury-at cost (3,150) (3,150)
Total shareholders' equity 206,620 200,760
Commitments and contingencies
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 762,092 $ 844,103
(See accompanying notes to consolidated financial statements)
</TABLE>
BINDLEY WESTERN INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(000's omitted except share data)
(unaudited)
<TABLE>
Three-month period ended
March 31,
1996 1995
<S> <C> <C>
Cash flow from operating activities:
Net income $ 4,604 $ 4,196
Adjustments to reconcile net income
to net cash provided (used) by operating activities:
Depreciation and amortization 1,634 1,572
Deferred income taxes (600) (600)
Loss (gain) on sale of marketable securities (47)
Loss (gain) on sale of fixed assets (7)
Change in assets and liabilities,
net of acquisition:
Accounts receivable 77,356 9,113
Finished goods inventory 29,078 104,206
Accounts payable (126,497) (72,780)
Other current assets and liabilities (2,178) (8,247)
Net cash provided (used) by
operating activities (16,609) 37,413
Cash flow from investing activities:
Purchase of fixed assets and other assets (12,392) (1,604)
Proceeds from sale of fixed assets 7
Proceeds from sale of investment securities 376
Acquisition of business (9,030) (3,212)
Net cash provided (used) by
investing activities (21,415) (4,440)
Cash flow from financing activities:
Proceeds from sale of stock 1,495 485
Reduction in long term debt (131) (116)
Proceeds under line of credit agreement 305,000 235,000
Payments under line of credit agreement (266,000) (266,000)
Dividends (239) (236)
Net cash provided (used) by
financing activities 40,125 (30,867)
Net increase (decrease) in cash 2,101 2,106
Cash at beginning of period 34,819 39,840
Cash at end of period $ 36,920 $ 41,946
(See accompanying notes to consolidated financial statements)
</TABLE>
BINDLEY WESTERN INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. The accompanying consolidated financial statements have been prepared
by the Company without audit. Certain information and footnote
disclosures, including significant accounting policies, normally
included in financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted. The
Company believes that the financial statements for the three month
periods ended March 31, 1996 and 1995 include all necessary
adjustments for fair presentation. Results for any interim period may
not be indicative of the results of the entire year.
2. In January, 1996, the Company's wholly-owned subsidiary, Priority
Healthcare Corporation, formed a new subsidiary, National Infusion
Services, Inc. (NIS). Effective February 8, 1996 Priority Healthcare
Corporation, through its NIS subsidiary, acquired the assets of the
infusion services division of Infectious Disease of Indiana, P.S.C.
NIS is a physician managed provider of quality care to patients in a
variety of settings, including the home, extended care facilities and
NIS' state-of-the-art outpatient infusion center in Indianapolis,
Indiana.
The acquisition was accounted for as a purchase and, accordingly, the
1996 financial statements include the results of operations of NIS
from the date of acquisition. The Company expended approximately $9.0
million and incurred a long-term obligation of approximately $1.5
million, resulting in approximately $9.8 million in intangible assets.
3. The Company is a defendant in a consolidated class action
complaint(the "Complaint") filed in the United States District Court
for the Northern District of Illinois (the "Court") which names
Bindley Western, five other pharmaceutical wholesalers and 26
pharmaceutical manufacturers as defendants. Plaintiffs allege that
chargeback agreements between pharmaceutical manufacturers and
wholesalers are the result of price-fixing agreements in violation of
the federal antitrust laws. The plaintiffs seek injunctive relief,
unspecified treble damages, costs, interest and attorneys fees. On
October 21, 1994, the Company entered into an agreement in these cases
with five other wholesalers and 26 pharmaceutical manufacturers.
Among other things, the agreement provides that: (a) if a judgment is
entered into against both the manufacturer and wholesaler defendants,
the total exposure for joint and several liability of the Company is
limited to $1,000,000; (b) if a settlement is entered into by, between
and among the manufacturer and wholesaler defendants, the Company has
no monetary exposure for such settlement amount; (c) the six
wholesaler defendants will be reimbursed by the 26 manufacturer
defendants for related legal fees and expenses up to $9,000,000 total
(the Company's initial portion of this amount is $1,000,000); and (d)
the Company is to release certain claims which it might have had
against the manufacturer defendants for the claims presented by the
plaintiffs in these cases. The agreement covers the federal court
litigation as well as cases which have been filed in various state
courts. On April 4, 1996, the Court dismissed the wholesalers as
defendants in the Complaint. The Court's decision with respect to the
wholesaler defendants may be appealed to the United States Court of
Appeals for the Seventh Circuit.
The Company is unable to form a conclusion regarding the likelihood of
a favorable or unfavorable outcome of an appeal. As confirmed by the
Court's decision, the Company believes the allegations of liability
set forth in the Complaint are without merit as to the wholesaler
defendants and that the attendant liability of the Company, if any,
would not have a material adverse effect on the Company's financial
condition.
On March 17, 1995, the Company was served a complaint that was filed
in the United States District Court for the Eastern District of
Arkansas by 148 independent pharmacies. The complaint names the
manufacturer and wholesaler defendants in the consolidated action plus
a number of regional wholesalers which sell pharmaceutical drugs in
Arkansas. No responsive pleadings have been filed at this time. The
Company has been informed by plaintiffs' counsel that the Company will
be dismissed as a defendant in their complaint.
4. On February 22, 1995, Pic `N Save, a 32 store chain based in
Jacksonville, FL, filed a petition for reorganization under the
federal Bankruptcy Code. As of the date of filing, Pic 'N Save was
indebted to the Company in an amount approximating $3.46 million. At
March 31, 1996, the Company believes that its reserves for doubtful
accounts are sufficient to absorb any uncollectible amounts resulting
from the Pic `N Save plan of reorganization, which was confirmed by
the United States Bankruptcy Court for the Middle District of Florida
on February 23, 1996. On May 8, 1996, Pic `N Save announced that it
was closing all of its remaining stores over a 60-90 day period and
that its assets would be liquidated by a third party. Because the
Company's post confirmation sales to Pic `N Save required cash-in-
advance, the Company has no additional exposure on accounts receivable
resulting from the Pic `N Save liquidation.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.
Results of Operations.
In January, 1996, the Company's wholly-owned subsidiary, Priority
Healthcare Corporation, formed a new subsidiary, National Infusion Services,
Inc. (NIS). Effective February 8, 1996 Priority Healthcare Corporation, through
its NIS subsidiary, acquired the assets of the infusion services division of
Infectious Disease of Indiana, P.S.C. NIS is a physician managed provider of
quality care to patients in a variety of settings, including the home, extended
care facilities and NIS' state-of-the-art out patient infusion center in
Indianapolis, Indiana. The acquisition was accounted for as a purchase and,
accordingly, the 1996 financial statements include the results of operations of
NIS from the date of acquisition.
Net sales for the first quarter increased by 7% from $1,114 million in 1995
to $1,189 million in 1996. Both pharmaceutical price inflation during the
period of approximately 4% and volume increases accounted for the net sales
increase. The increase reflected strength in most of the Company's operating
units, especially the direct store delivery segment. For the 1996 quarter,
direct store delivery sales were approximately 35% of total net sales as
compared to 32% for the respective 1995 quarter. This represented an increase
of 16% over 1995.
Gross margin of $29.4 million in 1996 increased by 9% over 1995. The
increase resulted from the overall increase in net sales and the successful
shift in revenue mix to the higher margin alternate care/alternate site and
direct store delivery business. This growth increased gross margin as a percent
of net sales from 2.43% in 1995 to 2.47% in 1996. The pressure on sell side
margins continued to be a significant factor in 1996 and the purchasing gains
associated with pharmaceutical price inflation remained relatively constant.
The decrease in other income resulted from reduced gains associated with
the sale of marketable securities and a decrease in service fee income on
certain customer receivable balances.
Selling, general and administration (SGA) expenses increased from $15.7
million in 1995 to $17.1 million in 1996. The increase in 1996 resulted from
normal inflationary increases, and costs to support the growing direct store
delivery program of Bindley Western Drug Company and the
alternate care/alternate site business of PHC. The cost increases related to
the direct store delivery and the alternate care/alternate site programs
include, among others, delivery expenses, warehouse expense and labor costs,
which are variable with the level of sales volume. In 1996, SGA expense also
includes non-recurring expenses of approximately $200,000 associated with the
closing and consolidation of the Brockton, Massachusetts and the Charlotte,
North Carolina distribution centers. These projects were substantially
completed in the first quarter of 1996. SGA expenses will continue to increase
as direct store delivery and alternate care sales/alternate site sales increase.
However, management remains focused on controlling this increase through
improved technology, better asset management and opportunities to consolidate
distribution centers.
Depreciation and amortization increased from $1.57 million in 1995 to $1.63
million in 1996 as a result of depreciation and amortization on new facilities,
equipment and intangibles.
Interest expense increased from $3.18 million in 1995 to $3.27 million in
1996. The average short-term borrowings outstanding decreased from $149 million
in 1995 to $129 million in 1996 and the average short-term interest rate
decreased from 7.2% in 1995 to 6.6% in 1996. Funds received from customers in
respect of working capital carrying cost, which are treated as a reduction of
interest expense, declined during the period.
The provision for income taxes represented 41.0% of earnings before taxes
in the first quarter of 1996 and 1995.
On February 22, 1995, Pic `N Save, a 32 store chain based in Jacksonville,
FL, filed a petition for reorganization under the federal Bankruptcy Code. As
of the date of filing, Pic 'N Save was indebted to the Company in an amount
approximating $3.46 million. At March 31, 1996, the Company believes that its
reserves for doubtful accounts are sufficient to absorb any uncollectible
amounts resulting from the Pic `N Save plan of reorganization, which was
confirmed by the United States Bankruptcy Court for the Middle District of
Florida on February 23, 1996. On May 8, 1996, Pic `N Save announced that it was
closing all of its remaining stores over a 60-90 day period and that its assets
would be liquidated by a third party. Because the Company's post confirmation
sales to Pic `N Save required cash-in-advance, the Company has no additional
exposure on accounts receivable resulting from the Pic `N Save liquidation.
The Company is still considering a pro rata distribution to its
shareholders of all of the stock of PHC. The proposed spin-off would separate
the Company's wholesale drug business from the wholesale drug and alternate
care/alternate site business of PHC. The contemplated spin-off would be subject
to, among other business considerations, obtaining a favorable tax ruling and
compliance with applicable securities and other governmental regulations.
LIQUIDITY-CAPITAL RESOURCES.
For the three month period ended March 31, 1996, the Company's operations
consumed $16.6 million in cash. The use of funds was primarily a result of a
reduction of accounts payable. This use was partially offset by the decreases
in accounts receivable and merchandise inventories. The Company continues to
closely monitor working capital in relation to economic and competitive
conditions. However, the emphasis on direct-store delivery and alternate care
business will continue to require both net working capital and cash.
Capital expenditures, predominantly for the purchase of transportation
equipment, the expansion and automation of existing warehouses and the
investment in additional management information systems were $12.4 million
during the quarter. The Company acquired the assets of NIS for approximately
$9.0 million in cash. The Company also incurred a long-term obligation of
approximately $1.5 million related to the purchase of NIS.
The net increase in borrowings under the bank credit agreement was $39
million during the period. At March 31, 1996 the Company had borrowed $113.5
million under the bank credit agreement and had a remaining availability of
$136.5 million.
On January 11, 1996, the Company was informed by the U.S. Attorney's office
in Indianapolis that the Drug Enforcement Administration was alleging multiple
violations of the recordkeeping and reporting regulations of the Controlled
Substances Act ("Act") resulting from a routine audit of the Company's
Indianapolis Division during January and February 1994. The maximum civil
penalty for each such violation is $25,000. The Company is currently involved
in settlement negotiations with the U.S. Attorney's office and, based on these
negotiations, the Company does not expect that any settlement would have a
material adverse effect on the financial condition or liquidity of the Company
and results of operations.
The Company believes that its cash on hand, cash equivalents, line of
credit and working capital management efforts are sufficient to meet future
working capital requirements.
The Company's principal working capital needs are for inventory and
accounts receivable. The Company sells inventory to its chain drug warehouse
and other customers on various payment terms. This requires significant working
capital to finance inventory purchases and entails accounts receivable exposure
in the event any of its chain warehouse or other significant customers encounter
financial difficulties. Although the Company monitors closely the
creditworthiness of its major customers and, when feasible, obtains security
interests in the inventory sold, there can be no assurance that the Company will
not incur the write off or write down of chain warehouse or other significant
accounts receivable in the future.
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
10-CC. Form of Termination Benefits Agreement, dated April 1,
1996, between the Company and Messrs. Bindley, Burks, McCormick,
and Salentine.
27. Selected Financial Data Schedule per Item
601 (c) (1) (ii) of Regulation S-B and S-K
b) Reports on Form 8-K
None
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
May 14, 1996 BINDLEY WESTERN INDUSTRIES, INC.
BY /s/ Thomas J. Salentine
Thomas J. Salentine
Executive Vice President
(Principal Financial Officer)
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> MAR-31-1996
<CASH> 36920
<SECURITIES> 0
<RECEIVABLES> 321272
<ALLOWANCES> 2468
<INVENTORY> 303024
<CURRENT-ASSETS> 670103
<PP&E> 70931
<DEPRECIATION> 18850
<TOTAL-ASSETS> 762092
<CURRENT-LIABILITIES> 480096
<BONDS> 70870
3315
0
<COMMON> 0
<OTHER-SE> 203305
<TOTAL-LIABILITY-AND-EQUITY> 762092
<SALES> 1188988
<TOTAL-REVENUES> 1189352
<CGS> 1159562
<TOTAL-COSTS> 1181548
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 1039
<INTEREST-EXPENSE> 3271
<INCOME-PRETAX> 7804
<INCOME-TAX> 3200
<INCOME-CONTINUING> 4604
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4604
<EPS-PRIMARY> 0.39
<EPS-DILUTED> 0.35
</TABLE>
-3-
TERMINATION BENEFITS AGREEMENT
This Termination Benefits Agreement ("Agreement") is made and entered
into as of _______, 199_ by and between Bindley Western Industries, Inc., an
Indiana corporation (hereinafter referred to as the "Corporation") and
____________________, a resident of the State of Indiana (hereinafter referred
to as "Employee").
W I T N E S S E T H
WHEREAS, Employee is now serving as of the Corporation; and
WHEREAS, the Corporation believes that Employee has made valuable
contributions to the productivity and profitability of the Corporation; and
WHEREAS, the Corporation desires to encourage Employee to continue to
make such contributions and not to seek or accept employment elsewhere; and
WHEREAS, the Corporation, therefore, desires to assure Employee of
certain benefits in case of any termination or significant redefinition of the
terms of his employment with the Corporation subsequent to any Change in Control
of the Corporation;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained and the mutual benefits herein provided, the
Corporation and Employee hereby agree as follows:
1. The term of this Agreement shall be from the date hereof through
___________, 199_; provided, however, that such term shall be automatically
extended for an additional year on ___________, 199_ and on ___________ of each
year thereafter unless either party hereto gives written notice to the other
party not to so extend prior to ___________ of the year for which notice is
given, in which case no further automatic extension shall occur and the term of
this Agreement shall end on ___________ three (3) years subsequent to the date
of the latest preceding automatic extension. Notwithstanding the foregoing, if
a Change in Control of the Corporation (as defined in Section 2 below) shall
occur prior to the expiration of the original term or any extensions of the term
of this Agreement, then the term of this Agreement shall automatically become a
term of _____ (_) years commencing on the date of any such Change in Control.
2. As used in this Agreement, "Change in Control" of the
Corporation means:
(A) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act as in effect from time
to time) of twenty-five percent (25%) or more of either (i) the then outstanding
shares of common stock of the Corporation or (ii) the combined voting power of
the then outstanding voting securities of the Corporation entitled to vote
generally in the election of directors; provided, however, that the following
acquisitions shall not constitute an acquisition of control: (i) any
acquisition directly from the Corporation (excluding an acquisition by virtue of
the exercise of a conversion privilege), (ii) any acquisition by the
Corporation, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any corporation controlled
by the Corporation, (iv) any acquisition by any corporation pursuant to a
reorganization, merger or consolidation, if, following such reorganization,
merger or consolidation, the conditions described in clauses (i), (ii) and (iii)
of subsection (C) of this Section 2 are satisfied, (v) any acquisition by
William E. Bindley or (vi) upon the death of William E. Bindley, any acquisition
triggered by his death by operation of law, by any testamentary bequest or by
the terms of any trust or other contractual arrangement established by him;
(B) Individuals who, as of the date hereof, constitute the Board of
Directors of the Corporation (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors of the Corporation (the
"Board"); provided, however, that any individual becoming a director subsequent
to the date hereof whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
(C) Approval by the shareholders of the Corporation of a
reorganization, merger or consolidation, in each case, unless, following such
reorganization, merger or consolidation, (i) more than sixty percent (60%) of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such reorganization, merger or consolidation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the outstanding
Corporation common stock and outstanding Corporation voting securities
immediately prior to such reorganization, merger or consolidation in
substantially the same proportions as their ownership, immediately prior to such
reorganization, merger or consolidation, of the outstanding Corporation stock
and outstanding Corporation voting securities, as the case may be, (ii) no
Person (excluding the Corporation, any employee benefit plan or related trust of
the Corporation or such corporation resulting from such reorganization, merger
or consolidation and any Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, directly or indirectly, twenty-five
percent (25%) or more of the outstanding Corporation common stock or outstanding
voting securities, as the case may be) beneficially owns, directly or
indirectly, twenty-five percent (25%) or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation or the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors and (iii) at least a majority of the members of the
board of directors of the corporation resulting from such reorganization, merger
or consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement providing for such reorganization, merger or
consolidation; or
(D) Approval by the shareholders of the Corporation of (i) a complete
liquidation or dissolution of the Corporation or (ii) the sale or other
disposition of all or substantially all of the assets of the Corporation, other
than to a corporation with respect to which following such sale or other
disposition (a) more than sixty percent (60%) of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting
power of the then outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the outstanding Corporation common
stock and outstanding Corporation voting securities immediately prior to such
sale or other disposition in substantially the same proportion as their
ownership, immediately prior to such sale or other disposition, of the
outstanding Corporation common stock and outstanding Corporation voting
securities, as the case may be, (b) no Person (excluding the Corporation and any
employee benefit plan or related trust of the Corporation or such corporation
and any Person beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, twenty-five percent (25%) or more of the
outstanding Corporation common stock or outstanding Corporation voting
securities, as the case may be) beneficially owns, directly or indirectly,
twenty-five percent (25%) or more of, respectively, the then outstanding shares
of common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors and (c) at least a majority of the members of the
board of directors of such corporation were members of the Incumbent Board at
the time of the execution of the initial agreement or action of the Board
providing for such sale or other disposition of assets of the Corporation.
3. The Corporation shall provide Employee with the benefits set
forth in Section 6 of this Agreement upon any termination of Employee's
employment by the Corporation following a Change in Control for any reason
except the following:
(A) Termination by reason of Employee's death.
(B) Termination by reason of Employee's "disability". For purposes
hereof, "disability" shall be defined as Employee's inability by reason of
illness or other physical or mental disability to perform the duties required by
his employment for any consecutive One Hundred Eighty (180) day period, provided
that notice of any termination by the Corporation because of Employee's
"disability" shall have been given to Employee prior to the resumption by him of
the performance of such duties.
(C) Termination upon Employee reaching his normal retirement date,
which for purposes of this Agreement shall be deemed to be the end of the month
during which employee reaches sixty-five (65) years of age.
(D) Termination for "cause". As used in this Agreement, the term
"cause" means fraud, dishonesty, theft of corporate assets, or other gross
misconduct by Employee. Notwithstanding the foregoing, Employee shall not be
deemed to have been terminated for cause unless and until there shall have been
delivered to him a copy of a resolution duly adopted by the affirmative vote of
not less than a majority of the entire membership of the Corporation's Board at
a meeting called and held for the purpose (after reasonable notice to him and an
opportunity for him, together with his counsel, to be heard before such Board),
finding that, in the good faith opinion of such Board, Employee was guilty of
conduct constituting "cause" and specifying the particulars thereof in detail.
4. The Corporation shall also provide Employee with the benefits set
forth in Section 6 of this Agreement upon any termination of Employee's
employment with the Corporation at Employee's option after a Change in Control
followed by the happening of any one of the following events:
(A) Without Employee's express written consent, the assignment of
Employee to any duties which, in Employee's reasonable judgment, are materially
inconsistent with his positions, duties, responsibilities or status with the
Corporation immediately prior to the Change in Control or a substantial
reduction of his duties or responsibilities which, in Employee's reasonable
opinion, does not represent a promotion from his position, duties or
responsibilities immediately prior to the Change in Control.
(B) A reduction by the Corporation in Employee's salary from the
level of such salary immediately prior to the Change in Control or the
Corporation's failure to increase (within twelve (12) months of Employee's last
increase in base salary) Employee's base salary after a Change in Control in an
amount which at least equals, on a percentage basis, the average percentage
increase in base salary for all executive and senior officers of the Corporation
effected in the preceding twelve (12) months.
(C) The failure by the Corporation to continue in effect any
incentive, bonus or other compensation plan in which Employee participates,
including but not limited to the Corporation's stock option plans, unless an
equitable arrangement (embodied in an ongoing substitute or alternative plan),
with which Employee has consented, has been made with respect to such plan in
connection with the Change in Control, or the failure by the Corporation to
continue Employee's participation therein, or any action by the Corporation
which would directly or indirectly materially reduce Employee's participation
therein.
(D) The failure by the Corporation to continue to provide Employee
with benefits substantially similar to those enjoyed by Employee or to which
Employee was entitled under any of the Corporation's principal pension, profit
sharing, life insurance, medical, dental, health and accident, or disability
plans in which Employee was participating at the time of a Change in Control,
the taking of any action by the Corporation which would directly or indirectly
materially reduce any of such benefits or deprive Employee of any material
fringe benefit enjoyed by Employee or to which Employee was entitled at the time
of the Change in Control, or the failure by the Corporation to provide Employee
with the number of paid vacation and sick leave days to which Employee is
entitled on the basis of years of service or position with the Corporation in
accordance with the Corporation's normal vacation policy in effect on the date
hereof.
(E) The Corporation's requiring Employee to be based anywhere other
than the metropolitan area where the Corporation office at which he was based
immediately prior to the Change in Control was located, except for required
travel on the Corporation's business in accordance with the Corporation's past
management practices.
(F) Any failure of the Corporation to obtain the assumption of the
obligation to perform this Agreement by any successor as contemplated in
Section 10 hereof.
(G) Any failure by the Corporation or its shareholders, as the case
may be, to reappoint or reelect Employee to a corporate office held by him
immediately prior to the Change in Control or his removal from any such office
including any seat held at such time on the Corporation's Board of Directors.
(H) The effectiveness of a resignation, tendered at any time, either
before or after a Change in Control and regardless of whether formally
characterized as voluntary or otherwise, by Employee of any corporate office
held by him immediately prior to the Change in Control or of any seat held at
such time on the Corporation's Board of Directors, at the request of the
Corporation or at the request of the person obtaining control of the Corporation
in such Change in Control.
(I) Any purported termination of the Employee's employment which is
not effected pursuant to a Notice of Termination satisfying the requirements of
Section 5 hereof (and, if applicable, Section 3(D) hereof); and for purposes of
this Agreement, no such purported termination shall be effective.
(J) Any request by the Corporation that Employee participate in an
unlawful act or take any action constituting a breach of Employee's professional
standard of conduct.
(K) Any breach by the Corporation of any of the provisions of this
Agreement or any failure by the Corporation to carry out any of its obligations
hereunder.
Notwithstanding anything in this Section 4 to the contrary, Employee's right to
terminate Employee's employment pursuant to this Section 4 shall not be affected
by Employee's incapacity due to physical or mental illness.
5. Any termination of Employee's employment with the Corporation as
contemplated by Section 3 hereof (except subsection 3(A)) or by Employee as
contemplated by Section 4 hereof shall be communicated by written "Notice of
Termination" to the other party hereto. Any "Notice of Termination" given by
Employee pursuant to Section 4 or given by the Corporation in connection with a
termination as to which the Corporation believes it is not obligated to provide
Employee with benefits set forth in Section 6 hereof shall indicate the specific
provisions of this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for such
termination.
6. Subject to the conditions and exceptions set forth in Section 3 and
Section 4 hereof, the following benefits, less any amounts required to be
withheld therefrom under any applicable federal, state or local income tax,
other tax, or social security laws or similar statutes, shall be paid to
Employee upon any termination of his employment with the Corporation subsequent
to a Change in Control:
(A) Within thirty (30) days following such a termination, Employee
shall be paid, at his then-effective salary, for services performed through the
date of his termination. In addition, any earned but unpaid amount of any bonus
or incentive payment shall be paid to Employee within thirty (30) days following
the termination of his employment.
(B) Within thirty (30) days following such a termination, Employee
shall be paid a lump sum payment of an amount equal to two and nine-tenths (2.9)
times Employee's "Base Amount." For purposes hereof, Base Amount is defined as
Employee's average includable compensation paid by the Corporation for the five
(5) most recent taxable years ending before the date on which the Change in
Control occurs. The definition, interpretation and calculation of the dollar
amount of Base Amount shall be in a manner consistent with and as required by
the provisions of Section 280G of the Internal Revenue Code of 1986, as amended
("Code"), and the regulations and rulings of the Internal Revenue Service
promulgated thereunder.
(C) (i) In the event that any payment or benefit (within the meaning
of Section 280G(b)(2) of the Code) paid or payable to the Employee or for his
benefit pursuant to the terms of this Agreement or otherwise (including any
benefit from the exercise of stock options vested early because of a change in
control) in connection with, or arising out of, his employment with the
Corporation or a change in ownership or effective control of the Corporation or
of a substantial portion of its assets (a "Payment" or "Payments"), would be
subject to the excise tax imposed by Section 4999 of the Code or any interest,
penalties, additional tax or similar items are incurred by the Employee with
respect to such excise tax (such excise tax, together with any such interest,
penalties, additional tax or similar items are hereinafter collectively referred
to as the "Excise Tax"), then the Employee will be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by the Employee of all taxes (including any interest, penalties, additional tax
or similar items imposed with respect thereto and the Excise Tax) including any
Excise Tax imposed upon the Gross-Up Payment, the Employee retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(ii) An initial determination as to whether a Gross-Up Payment is
required pursuant to this Agreement and the amount of such Gross-Up Payment
shall be made at the Corporation's expense by an accounting firm selected by the
Corporation and reasonably acceptable to the Employee which is designated as one
of the five largest accounting firms in the United States (the "Accounting
Firm"). The Accounting Firm shall provide its determination (the
"Determination"), together with detailed supporting calculations and
documentation to the Corporation and the Employee within ten days of the
Termination Date if applicable, or such other time as requested by the
Corporation or by the Employee and if the Accounting Firm determines that no
Excise Tax is payable by the Employee with respect to a Payment or Payments, it
shall furnish the Employee with an opinion reasonably acceptable to the Employee
that no Excise Tax will be imposed with respect to any such Payment or Payments.
Within ten days of the delivery of the Determination to the Employee, the
Employee shall have the right to dispute the Determination (the "Dispute"). The
Gross-Up Payment, if any, as determined pursuant to this subsection 6(c)(ii)
shall be paid by the Corporation to the Employee within five days of the receipt
of the Accounting Firm's Determination. The existence of the Dispute shall not
in any way affect the Employee's right to receive the Gross-Up Payment in
accordance with the Determination. If there is no Dispute, the Determination
shall be binding, final and conclusive upon the Corporation and the Employee
subject to the application of subsection 6(c)(iii) below.
(iii) As a result of the uncertainty in the application of
Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a
portion thereof) will be paid which should not have been paid (an "Excess
Payment") or a Gross-Up Payment (or a portion thereof) which should have been
paid will not have been paid (an "Underpayment"). An Underpayment shall be
deemed to have occurred (a) upon notice (formal or informal) to the Employee
from any governmental taxing authority that the Employee's tax liability
(whether in respect of the Employee's current taxable year or in respect of any
prior taxable year) may be increased by reason of the imposition of the Excise
Tax on a Payment or Payments with respect to which the Corporation has failed to
make a sufficient Gross-Up Payment, (b) upon a determination by a court, (c) by
reason of determination by the Corporation (which shall include the position
taken by the Corporation, together with its consolidated group, on its federal
income tax return) or (d) upon the resolution of the Dispute to the Employee's
satisfaction. If an Underpayment occurs, the Employee shall promptly notify the
Corporation and the Corporation shall promptly, but in any event, at least five
days prior to the date on which the applicable government taxing authority has
requested payment, pay to the Employee an additional Gross-Up Payment equal to
the amount of the Underpayment plus any interest, penalties, additional taxes or
similar items imposed on the Underpayment. An Excess Payment shall be deemed to
have occurred upon a "Final Determination" (as hereinafter defined) that the
Excise Tax shall not be imposed upon a Payment or Payments (or portion thereof)
with respect to which the Employee had previously received a Gross-Up Payment.
A "Final Determination" shall be deemed to have occurred when the Employee has
received from the applicable government taxing authority a refund of taxes or
other reduction in the Employee's tax liability by reason of the Excise Payment
and upon either (x) the date a determination is made by, or an agreement is
entered into with, the applicable governmental taxing authority which finally
and conclusively binds the Employee and such taxing authority, or in the event
that a claim is brought before a court of competent jurisdiction, the date upon
which a final determination has been made by such court and either all appeals
have been taken and finally resolved or the time for all appeals has expired or
(y) the statute of limitations with respect to the Employee's applicable tax
return has expired. If an Excess Payment is determined to have been made, the
amount of the Excess Payment shall be treated as a loan by the Corporation to
the Employee and the Employee shall pay to the Corporation on demand (but not
less than 10 days after the Final Determination of such Excess Payment and
written notice has been delivered to the Employee) the amount of the Excess
Payment plus interest at an annual rate equal to the Applicable Federal Rate
provided for in Section 1274(d) of the Code from the date the Gross-Up Payment
(to which the Excess Payment relates) was paid to the Employee until the date of
repayment to the Corporation.
(iv) Notwithstanding anything contained in this Agreement to the
contrary, in the event that, according to the Determination, an Excise Tax will
be imposed on any Payment or Payments, the Corporation shall pay to the
applicable government taxing authorities as Excise Tax withholding, the amount
of the Excise Tax that the Corporation has actually withheld from the Payment or
Payments.
(D) Employee acknowledges and agrees that payment in accordance with
subsections 6(A), 6(B) and 6(C) shall be deemed to constitute a full settlement
and discharge of any and all obligations of the Corporation to Employee arising
out of his employment with the Corporation and the termination thereof, except
for any vested rights Employee may then have under any insurance, pension,
supplemental pension, thrift, employee stock ownership, or stock option plans
sponsored or made available by the Corporation.
7. The Corporation is aware that upon the occurrence of a Change in
Control the Board of Directors or a shareholder of the Corporation may then
cause or attempt to cause the Corporation to refuse to comply with its
obligations under this Agreement, or may cause or attempt to cause the
Corporation to institute, or may institute, litigation seeking to have this
Agreement declared unenforceable, or may take or attempt to take other action to
deny Employee the benefits intended under this Agreement. In these
circumstances, the purpose of this Agreement could be frustrated. It is the
intent of the Corporation that Employee not be required to incur the expenses
associated with the enforcement of his rights under this Agreement by litigation
or other legal action, nor be bound to negotiate any settlement of his rights
hereunder, because the cost and expense of such legal action or settlement would
substantially detract from the benefits intended to be extended to Employee
hereunder. Accordingly, if following a Change in Control it should appear to
Employee that the Corporation has failed to comply with any of its obligations
under this Agreement or in the event that the Corporation or any other person
takes any action to declare this Agreement void or unenforceable, or institutes
any litigation or other legal action designed to deny, diminish or to recover
from Employee the benefits entitled to be provided to the Employee hereunder,
and that Employee has complied with all of his obligations under this Agreement,
the Corporation irrevocably authorizes Employee from time to time to retain
counsel of his choice, at the expense of the Corporation as provided in this
Section 7, to represent Employee in connection with the initiation or defense of
any litigation or other legal action, whether such action is by or against the
Corporation or any director, officer, shareholder, or other person affiliated
with the Corporation, in any jurisdiction. Notwithstanding any existing or
prior attorney-client relationship between the Corporation and such counsel, the
Corporation irrevocably consents to Employee entering into an attorney-client
relationship with such counsel, and in that connection the Corporation and
Employee agree that a confidential relationship shall exist between Employee and
such counsel. The reasonable fees and expenses of counsel selected from time to
time by Employee as hereinabove provided shall be paid or reimbursed to Employee
by the Corporation on a regular, periodic basis upon presentation by Employee of
a statement or statements prepared by such counsel in accordance with its
customary practices, up to a maximum aggregate amount of One Hundred Thousand
Dollars ($100,000). Any legal expenses incurred by the Corporation by reason of
any dispute between the parties as to enforceability of or the terms contained
in this Agreement as provided by this Section 7, notwithstanding the outcome of
any such dispute, shall be the sole responsibility of the Corporation, and the
Corporation shall not take any action to seek reimbursement from Employee for
such expenses. Notwithstanding any limitation contained in this Section 7 to
the contrary, Employee shall be entitled to payment or reimbursement of legal
expenses in excess of One Hundred Thousand Dollars ($100,000) if the expenses
were incurred as a result of a dispute under this Agreement in which Employee
obtains a final judgment in his favor from a court of competent jurisdiction or
his claim is settled by the Corporation prior to the rendering of a judgment by
such a court.
8. Employee is not required to mitigate the amount of benefit payments to
be made by the Corporation pursuant to this Agreement by seeking other
employment or otherwise, nor shall the amount of any benefit payments provided
for in this Agreement be reduced by any compensation earned by Employee as a
result of employment by another employer or which might have been earned by
Employee had Employee sought such employment, after the date of termination of
his employment with the Corporation or otherwise.
9. In order to induce the Corporation to enter into this Agreement,
Employee hereby agrees as follows:
(A) He will keep confidential and not improperly divulge for the
benefit of any other party any of the Corporation's confidential information and
business secrets including, but not limited to, confidential information and
business secrets relating to such matters as the Corporation's finances,
operations and customer lists. All of the Corporation's confidential
information and business secrets shall be the sole and exclusive property of the
Corporation.
(B) For a period of two years after Employee's employment with the
Corporation ceases, Employee shall not either on his own account or for any
other person, firm or company solicit or endeavor to cause any employee of the
Corporation to leave his employment or to induce or attempt to induce any such
employee to breach any employment agreement with the Corporation.
In the event of a breach or threatened breach by Employee of the provisions of
this Section 9, the Corporation shall be entitled to an injunction restraining
Employee from committing or continuing such breach. Nothing herein contained
shall be construed as prohibiting the Corporation from pursuing any other
remedies available to it for such breach or threatened breach including the
recovery of damages from Employee. The covenants of this Section 9 shall run
not only in favor of the Corporation and its successors and assigns, but also in
favor of its subsidiaries and their respective successors and assigns and shall
survive the termination of this Agreement.
10. The Corporation shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Corporation, by agreement
in form and substance satisfactory to Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such succession had taken
place. Failure of the Corporation to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Employee to compensation from the Corporation in the same amount
and on the same terms as Employee would be entitled hereunder if he were to
terminate his employment pursuant to Section 4 hereof, except that for purposes
of implementing the foregoing, the date on which succession becomes effective
shall be deemed the date of termination of Employee's employment with the
Corporation. As used in this Agreement, "Corporation" shall mean corporation as
hereinbefore defined and any successor to the business or assets of it as
aforesaid which executes and delivers the agreement provided for in this
Section 10 or which otherwise becomes bound by all of the terms and provisions
of this Agreement by operation of law.
11. Should Employee die while any amounts are payable to him hereunder,
this Agreement shall inure to the benefit of and be enforceable by Employee's
executors, administrators, heirs, distributees, devisees and legatees and all
amounts payable hereunder shall be paid in accordance with the terms of this
Agreement to Employee's devisee, legatee or other designee or if there be no
such designee, to his estate.
12. For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been given
when delivered or mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to Employee:
If to the Corporation:
Bindley Western Industries, Inc.
10333 North Meridian, Suite 300
Indianapolis, Indiana 46290
Attention: Corporate Secretary
or to such other address as any party may have furnished to the other party in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. The validity, interpretation, and performance of this Agreement shall
be governed by the laws of the State of Indiana. The parties agree that all
legal disputes regarding this Agreement will be resolved in Indianapolis,
Indiana, and irrevocably consent to service of process in such City for such
purpose.
14. No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by
Employee and the Corporation. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or any
prior or subsequent time. No agreements or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
any party which are not set forth expressly in this Agreement.
15. The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
16. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same Agreement.
17. This Agreement is personal in nature and neither of the parties hereto
shall, without the consent of the other, assign or transfer this Agreement or
any rights or obligations hereunder, except as provided in Section 10 and
Section 11 above. Without limiting the foregoing, Employee's right to receive
payments hereunder shall not be assignable or transferable, whether by pledge,
creation of a security interest or otherwise, other than a transfer by his Will
or by the laws of descent and distribution as set forth in Section 11 hereof,
and in the event of any attempted assignment or transfer contrary to this
Section 17, the Corporation shall have no liability to pay any amount so
attempted to be assigned or transferred.
Any benefits payable under this Agreement shall be paid solely from
the general assets of the Corporation. Neither Employee nor Employee's
beneficiary shall have interest in any specific assets of the Corporation under
the terms of this Agreement. This Agreement shall not be considered to create
an escrow account, trust fund or other funding arrangement of any kind or a
fiduciary relationship between Employee and the Corporation.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
BINDLEY WESTERN INDUSTRIES, INC.
("Corporation")
By:________________________________
Member of the Compensation and
Stock Option Committee and
Member of the Board of Directors
___________________________________
("Employee")
