As filed with the Securities and
Exchange Commission on April 2, 1999 Registration No. 333-___________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
BINDLEY WESTERN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
INDIANA 84-0601662
(State or other jurisdiction I.R.S. Employer
of incorporation or organization) (Identification No.)
8909 PURDUE ROAD
INDIANAPOLIS, INDIANA 46268
(Address of Principal Executive Offices) (Zip Code)
BINDLEY WESTERN INDUSTRIES, INC.
1998 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
MICHAEL D. MCCORMICK
8909 PURDUE ROAD, INDIANAPOLIS, INDIANA 46268
(Name and address of agent for service)
(317) 704-4000
(Telephone number, including area code, of agent for service)
COPY TO:
JAMES A. ASCHLEMAN
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE (2) PRICE (2)
<S> <C> <C> <C> <C>
Common Stock, 600,000 $28.4063 (3) $17,043,750 (3) $4,738.16 (3)
$0.01 par value
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also registers additional shares of
Common Stock as may be offered or issued to prevent dilution resulting from
stock splits, stock dividends and similar transactions. In addition,
pursuant to Rule 457(h)(2) under the Securities Act, no separate fee is
required to register such additional shares of Common Stock.
(2) It is impracticable to state the maximum offering price. Shares offered
pursuant to nonqualified stock options granted under the Plan may be
offered at any price.
(3) Estimated solely for purposes of calculating the registration fee and
computed in accordance with Rule 457(c) and (h) under the Securities Act
using the average of the high and low sale prices of the Common Stock as
reported by the NYSE on March 29, 1999, which was $28.4063 per share.
S8.WPD
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
*Information required by Part I of Form S-8 to be contained in the
Section 10(a) Prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Bindley Western Industries,
Inc. (the "Registrant") with the Securities and Exchange Commission are
incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998; and
(2) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on December 2, 1983, including
any amendment or report filed for the purpose of updating such
description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities offered hereby then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from their respective dates
of filing.
The Registrant will promptly provide without charge to each person to
whom a prospectus is delivered, a copy of any or all information that has
been incorporated herein by reference (not including exhibits to the
information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into such information), upon the
written or oral request of such person directed to the Secretary of the
Registrant at its principal offices, 8909 Purdue Road, Indianapolis,
Indiana, 46268, (317) 704-4000.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The following is a summary of the general effect of the indemnification
provisions of the Registrant's Amended and Restated Articles of
Incorporation and of the indemnification provided for under Indiana law.
All statements made herein, which are only intended to summarize the
above-referenced provisions, are qualified in their entirety by reference
to the Registrant's Amended and Restated Articles of Incorporation and the
Indiana Business Corporation Law (the "IBCL").
The Amended and Restated Articles of Incorporation of the Registrant
provide for the indemnification of the directors, officers, employees and
agents of the Registrant (or those serving at the request of the Registrant
as such for another entity, including an employee benefit plan) against
expenses, judgments, settlements, penalties and fines that my be incurred
by them in connection with or resulting from any pending, threatened or
completed claim, action, suit or proceeding, civil, criminal,
administrative or investigative, formal or informal, to which they are made
parties if they are determined to have acted in good faith and in a manner
they reasonably believed to be in the best interests of the Registrant or
at least not opposed to the best interests of the Registrant (or with
respect to an employee benefit plan, if they reasonably believed they were
acting in conformity with ERISA or if they reasonably believed their
actions to be in the interests of the participants in or beneficiaries of
the plan) and, with respect to any criminal action or proceeding, they
either had reasonable cause to believe their conduct was lawful or had no
reasonable cause to believe their conduct was unlawful. Such
indemnification is required where there is termination of a claim against
an individual without any finding of liability or guilt against him and in
cases where a court approves, with knowledge of the indemnity provided, the
settlement of a claim. The Amended and Restated Articles of Incorporation
of the Registrant also set forth the procedures to be followed in
connection with a claim for indemnification.
Under the IBCL, a corporation may indemnify any individual 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 and whether formal or informal, by reason
of the fact that he is or was a director, officer, employee or agent of the
corporation or, while a director of a corporation, is or was serving at the
request of the corporation as a director, officer, partner, member,
manager, trustee, employee or agent of another foreign or domestic
corporation, partnership, limited liability company, joint venture, trust,
employee benefit plan or other enterprise, whether for profit or not,
against reasonable expenses (including counsel fees), judgments, fines
(including any excise tax assessed with respect to an employee benefit
plan), penalties and amounts paid in settlement incurred by him in
connection with such action, suit or proceeding (i) if he acted in good
faith, and (ii) in the case of conduct in his official capacity with the
corporation, if he reasonably believed his conduct was in the best
interests of the corporation or, in all other cases, if he reasonably
believed his conduct was at least not opposed to the best interests of the
corporation (or with respect to an employee benefit plan, if he reasonably
believed his conduct was in the interests of the participants in and
beneficiaries of the plan), and (iii) with respect to any criminal action
or proceeding, if he had reasonable cause to believe his conduct was lawful
or had no reasonable cause to believe his conduct was unlawful.
The IBCL further provides that a corporation shall, unless limited by
its articles of incorporation, indemnify a director or officer who was
wholly successful, on the merits or otherwise, in the defense of any
action, suit or proceeding to which he was a party because he is or was a
director or officer of the corporation against reasonable expenses incurred
by him in connection therewith. The IBCL empowers a corporation, under
certain circumstances, to advance to an individual expenses incurred in
connection with an action, suit or proceeding prior to the final
disposition thereof. The IBCL also provides that, unless limited by the
corporation's articles of incorporation, a court of competent jurisdiction
may, in certain cases, order indemnification of a director or officer
irrespective of whether the director or officer met the standards of
conduct set forth above.
In addition, the Registrant has a directors' and officers' liability
policy that insures against certain liabilities, including liabilities
under the Securities Act, subject to applicable retentions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The list of Exhibits is incorporated herein by reference to the Index
to Exhibits.
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;
(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 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.
The undersigned Registrant hereby 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 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 the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT. 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 Indianapolis, State
of Indiana, on April 1, 1999.
BINDLEY WESTERN INDUSTRIES, INC.
By: /S/ WILLIAM E. BINDLEY
William E. Bindley
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their respective
capacities and on the respective dates indicated opposite their names.
Each person whose signature appears below hereby authorizes each of
William E. Bindley, Michael D. McCormick and Thomas J. Salentine, each with
full power of substitution, to execute in the name and on behalf of such
person any post-effective amendment to this Registration Statement and to
file the same, with exhibits thereto, and other documents in connection
therewith, making such changes in this Registration Statement as the
Registrant deems appropriate, and appoints each of William E. Bindley,
Michael D. McCormick and Thomas J. Salentine, each with full power of
substitution, attorney-in-fact to sign any amendment and any post-effective
amendment to this Registration Statement and to file the same, with
exhibits thereto, and other documents in connection therewith.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ WILLIAM E. BINDLEY Chairman, President, Chief April 1, 1999
William E. Bindley Executive Officer and Director
(Principal Executive Officer)
/S/ WILLIAM F. BINDLEY, II Director April 1, 1999
William F. Bindley, II
/S/ KEITH W. BURKS Executive Vice President April 1, 1999
Keith W. Burks and Director
/S/ SETH B. HARRIS Director April 1, 1999
Seth B. Harris
/S/ ROBERT L. KOCH, II Director April 1, 1999
Robert L. Koch, II
/S/ MICHAEL D. MCCORMICK Executive Vice President, April 1, 1999
Michael D. McCormick General Counsel, Secretary
and Director
/S/ TIMOTHY MCGINLEY Director April 1, 1999
J. Timothy McGinley
/S/ JAMES K. RISK, III Director April 1, 1999
James K. Risk, III
/S/ THOMAS J. SALENTINE Executive Vice President, April 1, 1999
Thomas J. Salentine Chief Financial Officer
and Director (Principal Accounting
and Financial Officer)
/S/ K. CLAY SMITH Director April 1, 1999
K. Clay Smith
/S/ CAROLYN Y. WOO Director April 1, 1999
Carolyn Y. Woo
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
DESCRIPTION OF EXHIBIT
Exhibit
NO.
<S> <C>
4.1 (i) Amended and Restated Articles of Incorporation of the
Registrant. (The copy of this Exhibit filed as Exhibit 3-A(i) to
the Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1987 is incorporated herein by reference.)
(ii) Amendment to Restated Articles of Incorporation increasing
number of authorized shares. (The copy of this Exhibit filed as
Exhibit 4(a)(ii) to the Registrant's Registration Statement on Form
S-3 (Registration No. 33-45965) is incorporated herein by
reference.)
(iii) Amendment to Restated Articles of Incorporation establishing
terms of Class A Preferred Stock. (The copy of this Exhibit filed
as Exhibit 1 to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1992 is incorporated herein by
reference.)
(iv) Amendment to Restated Articles of Incorporation increasing
number of authorized shares. (The copy of this Exhibit filed as
Exhibit 4.1(iv) to the Registrant's Registration Statement on Form
S-8 (Registration No. 333-57975) is incorporated herein by
reference.)
4.2 Restated By-Laws of the Registrant, as amended to date. (The copy
of this Exhibit filed as Exhibit 4.2 to the Registrant's
Registration Statement on Form S-8 (Registration No. 333-57975) is
incorporated herein by reference.)
4.3 1998 Non-Qualified Stock Option Plan of Registrant, as amended to
date. (The copy of this Exhibit filed as Exhibit 10-BB to the
Registrant's Annual Report on Form 10-K for the year ended December
31, 1998 is incorporated herein by reference.)
5 Opinion of Baker & Daniels, counsel for Registrant, as to the
legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Baker & Daniels (included in the Baker & Daniels Opinion
filed as Exhibit 5).
24 Powers of Attorney (included on the Signature Page of the
Registration Statement).
</TABLE>
EXHIBIT 5
BAKER & DANIELS
300 NORTH MERIDIAN STREET
SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
April 1, 1999
Bindley Western Industries, Inc.
8909 Purdue Road
Indianapolis, IN 46268
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Bindley Western Industries, Inc., an Indiana
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") of the Company's
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933 (the "Act"), registering the offer and sale of up to
600,000 shares (the "Option Shares") of the Company's common stock, $0.01 par
value (the "Common Stock"), pursuant to the Bindley Western Industries, Inc.
1998 Non-Qualified Stock Option Plan (the "Plan").
In so acting, we have examined and relied upon the originals, or copies
certified or otherwise identified to our satisfaction, of such records,
documents and other instruments as in our judgment are necessary or appropriate
to enable us to render the opinion expressed below.
Based on the foregoing, we are of the opinion that the Option Shares have
been duly authorized and, when the Registration Statement shall have become
effective and the Option Shares have been issued in accordance with the Plan,
the Option Shares will be validly issued, fully paid and non-assessable.
Our opinion expressed above is limited to the federal law of the United
States and the law of the State of Indiana.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby concede that
we are within the category of persons whose consent is required under Section 7
of the Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ BAKER & DANIELS
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 24, 1999, appearing on
page F-1 of Bindley Western Industries, Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Indianapolis, Indiana
April 1, 1999
