<PAGE> 1
As Filed with the Securities and Exchange Commission on March 31, 1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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D & K WHOLESALE DRUG, INC.
(Exact name of registrant as specified in charter)
DELAWARE 43-1465483
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
8000 Maryland Avenue, Suite 1190
St. Louis, Missouri 63105
(Address of principal executive offices) (Zip Code)
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D & K WHOLESALE DRUG, INC.
401(k) PROFIT SHARING PLAN AND TRUST
(Full title of the plan)
------------------------------
J. HORD ARMSTRONG, III
Chairman of the Board and Chief Executive Officer
D & K Wholesale Drug, Inc.
8000 Maryland Avenue, Suite 1190
St. Louis, Missouri 63105
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (314) 727-3485
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Copy to:
THOMAS A. LITZ, ESQ.
Thompson & Mitchell
One Mercantile Center
St. Louis, Missouri 63101
(314) 231-7676
<TABLE>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registra-
Registered Registered<F1> Share<F2> Price<F2> tion Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 100,000 shares $4.375 $437,500 $133.00
===============================================================================================================
<FN>
<F1> Includes an indeterminate amount of plan interests pursuant to Rule 416(c).
<F2> Estimated solely for purposes of computing the Registration Fee pursuant to
the provisions of Rule 457(h), based upon a price of $4.375 per share, being the
average of the bid and asked prices per share as reported by the Nasdaq
Small-Cap Market on March 27, 1997.
</TABLE>
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D & K WHOLESALE DRUG, INC.
401(k) PROFIT SHARING PLAN AND TRUST
Item 3. Incorporation of Certain Documents by Reference.
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The following documents filed by D & K Wholesale Drug, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated
herein by reference:
(i) The Company's Annual Report on Form 10-K for the year ended March
29, 1996.
(ii) The Company's Quarterly Reports on Form 10-Q for the quarters
ended June 30, 1996, September 30, 1996 and December 31, 1996.
(iii) The Annual Report on Form 11-K of the Plan for the year ended
December 31, 1995.
(iv) The descriptions of the Company's Common Stock set forth in the
Company's Registration Statement on Form S-1 dated September 1,
1992 (File No. 33-48730), which descriptions were incorporated
by reference into the Company's Registration Statement on Form
8-A dated September 1, 1992 (File No. 0-20348).
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the 1934 Act, after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and to be made a part hereof from the date of
filing of such documents. Any statement contained herein or in a document
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained in a subsequently filed document incorporated herein by reference
which statement is also incorporated herein by reference modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 102(b)(7) of the Delaware General Corporation Law ("DGCL")
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation
or its shareowners for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its shareowners, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) for payments of unlawful dividends or unlawful stock
repurchases or redemptions, or (iv) for any transaction from which the
director derived an improper personal benefit. The Company's Restated
Certificate of Incorporation contains such a provision.
Section 145 of the DGCL provides that a corporation may indemnify
directors and officers as well as other employees and individuals against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than an
<PAGE> 3
action by or in the right of the corporation -- a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful. A similar standard is applicable in the case of
derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement
of such action, and the statute requires court approval before there can be
any indemnification where the person seeking indemnification has been found
liable to the corporation. The statute provides that it is not exclusive of
other indemnification that may be granted by a corporation's charter, bylaws,
disinterested director vote, shareowner vote, agreement or otherwise. The
Company's Restated By-Laws provide that the directors and officers shall be
indemnified against liabilities arising from their services as directors or
officers to the fullest extent permitted by Delaware law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling
the Company pursuant to such provisions, the Company has been informed 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.
Item 8. Exhibits.
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The following exhibits are filed herewith or incorporated herein by
reference:
4.1 Restated Certificate of Incorporation of the Company, filed as
Exhibit 3.2 to the Company's Registration Statement on Form S-1
dated September 1, 1992 (File No. 33-48730), is incorporated
herein by this reference.
4.2 Restated By-Laws of the Company, filed as Exhibit 3.3 to the
Company's Registration Statement on Form S-1 dated September 1,
1992 (File No. 33-48730), is incorporated herein by this
reference.
4.3 D & K Wholesale Drug, Inc. 401(k) Profit Sharing Plan and Trust,
filed as Exhibit 10.25 to the Company's Annual Report on Form
10-K for the year ended March 29, 1996, is incorporated herein
by this reference.
5 Opinion of Thompson Coburn as to the legality of the securities to
be registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Thompson Coburn (set forth in Exhibit 5 hereto).
24 Power of Attorney (set forth on signature page hereto).
Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
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(1) To file, during any period in which offers and 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 previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13
or 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.
(b) 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.
(c) 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
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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.
(d) The undersigned registrant hereby undertakes to submit the Plan and
any amendments thereto to the Internal Revenue Service in a timely manner and
to make all changes required by the Internal Revenue Code in order to qualify
the Plan under Section 401 of the Internal Revenue Code of 1986, as amended.
* * *
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
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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 County of St. Louis, State of Missouri, on
March 31, 1997.
D & K WHOLESALE DRUG, INC.
By /s/ J. Hord Armstrong, III
---------------------------------
J. Hord Armstrong, III
Chairman of the Board and Chief
Executive Officer
We, the undersigned officers and directors of D & K Wholesale
Drug, Inc. hereby severally and individually constitute and appoint J. Hord
Armstrong, III and Martin D. Wilson, and each of them, the true and lawful
attorneys and agents of each of us to execute in the name, place and stead of
each of us (individually and in any capacity stated below) any and all
amendments to this Registration Statement on Form S-8 and all instruments
necessary or advisable in connection therewith and to file the same with the
Securities and Exchange Commission, each of said attorneys and agents to have
the power to act with or without the others and to have full power and
authority to do and perform in the name and on behalf of each of the
undersigned every act whatsoever necessary or advisable to be done in the
premises as fully and to all intents and purposes as any of the undersigned
might or could do in person, and we hereby ratify and confirm our signatures
as they may be signed by our said attorneys and agents and each of them to
any and all such amendments and instruments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ J. Hord Armstrong, III Chairman of the Board and March 31, 1997
- ------------------------------ Chief Executive Officer and
J. Hord Armstrong, III Director (Principal Executive
and Financial Officer)
/s/ Martin D. Wilson President and Chief Operating March 31, 1997
- ------------------------------ Officer and Director
Martin D. Wilson
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<PAGE> 7
Signature Title Date
--------- ----- ----
/s/ Daniel E. Kreher Vice President - Finance March 31, 1997
- ------------------------------ and Administration (Principal
Daniel E. Kreher Accounting Officer)
Director March --, 1997
- ------------------------------
Richard F. Ford
/s/ Steven B. Goldfine Director March 31, 1997
- ------------------------------
Steven B. Goldfine
/s/ Bryan H. Lawrence Director March 31, 1997
- ------------------------------
Bryan H. Lawrence
/s/ Elliot H. Stein Director March 31, 1997
- ------------------------------
Elliot H. Stein
</TABLE>
The Plan. Pursuant to the requirements of the Securities Act of
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1933, the Trustee has duly caused this registration statement to be signed in
the County of St. Louis, State of Missouri, on March --, 1996.
D & K 401(k) PROFIT SHARING PLAN AND TRUST
By /s/ Martin D. Wilson
------------------------------------------
Martin D. Wilson, Trustee
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<TABLE>
EXHIBIT INDEX
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<CAPTION>
Exhibit No. Page
- ---------- ----
<C> <S> <C>
4.1 Restated Certificate of Incorporation of the Company, filed
as Exhibit 3.2 to the Company's Registration Statement on
Form S-1 dated September 1, 1992 (File No. 33-48730), is
incorporated herein by this reference.
4.2 Restated By-Laws of the Company, filed as Exhibit 3.3 to the
Company's Registration Statement on Form S-1 dated September 1,
1992 (File No. 33-48730), is incorporated herein by this reference.
4.3 D & K Wholesale Drug, Inc. 401(k) Profit Sharing and Trust, filed
as Exhibit 10.25 to the Company's Registration Statement on
Form 10-K for the year ended March 29, 1996, is incorporated herein
by this reference.
5 Opinion of Thompson Coburn as to the legality of the securities to
be registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Thompson Coburn (set forth in Exhibit 5 hereto).
24 Power of Attorney (set forth on signature page hereto).
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</TABLE>
<PAGE> 1
March 31, 1997
D & K Wholesale Drug, Inc.
8000 Maryland Avenue, Suite 1190
St. Louis, Missouri 63105
Re: Registration Statement on Form S-8 -- 100,000
Shares of D & K Wholesale Drug, Inc. Common Stock
-------------------------------------------------
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by D & K Wholesale Drug, Inc., a
Delaware corporation (the "Company"), on or about April 1, 1997, with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, pertaining to the proposed issuance by the Company, as provided in
the D & K 401(k) Profit Sharing Plan and Trust (the "Plan"), of up to 100,000
shares of the Company's Common Stock, $.01 par value (the "Shares") and an
indeterminate amount of Plan interests (the "Plan Interests"), we have
examined such corporate records of the Company, such laws and such other
information as we have deemed relevant, including the Company's Restated
Certificate of Incorporation, By-Laws, resolutions adopted by the Board of
Directors relating to such issuance, certificates received from state officials
and statements we have received from officers and representatives of the
Company. In delivering this opinion, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
the conformity to the originals of all documents submitted to us as certified,
photostatic or conformed copies, the authenticity of originals of all such
latter documents, and the correctness of statements submitted to us by officers
and representatives of the Company.
Based solely on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and is in good standing under the
laws of the State of Delaware; and
<PAGE> 2
D & K Wholesale Drug, Inc.
March 31, 1997
Page 2
2. The Shares and the Plan Interests to be issued by the Company
pursuant to the Registration Statement have been duly authorized and, when
issued in accordance with the Plan, will be duly and validly issued.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. We further consent to the filing of copies of this
opinion with agencies of such states and other jurisdictions as you deem
necessary in the course of complying with laws regarding the sale and
issuance of the Shares and the Plan Interests in accordance with the
Registration Statement.
Very truly yours,
/s/ Thompson Coburn
<PAGE> 1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated May 17, 1996,
included and incorporated by reference in D & K Wholesale Drug, Inc.'s
Form 10-K for the year ended March 29, 1996, and to all references to our
firm included in this registration statement.
ARTHUR ANDERSEN LLP
/s/ Arthur Andersen LLP
St. Louis, Missouri
March 28, 1997
