As Filed with the Securities and Exchange Commission on November 6, 2002
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AMERISOURCEBERGEN CORPORATION
(Exact Name of Registrant as Specified in Charter)
DELAWARE 23-3079390
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
1300 Morris Drive, Suite 100
Chesterbrook, Pennsylvania 19087-5594
(610) 727-7000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
AMERISOURCEBERGEN CORPORATION 2001 NON-EMPLOYEE DIRECTORS'
STOCK OPTION PLAN
(Full title of the plan)
William D. Sprague, Esquire
AmerisourceBergen Corporation
1300 Morris Drive, Suite 100
Chesterbrook, PA 19087-5594
(Name and address of agent for service)
(610) 727-7000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of shares to be Amount to be Proposed maximum Proposed maximum Amount of registration
registered registered offering price per aggregate offering fee
share price
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Common Stock 323,660(1)(2)(3) (3) (3)
($.01 par value)
9,000(4) $69.48(5) $625,320(5) $57.53
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Total 332,660 $625,320 $57.53
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(1) This registration statement (the "Registration Statement") registers the
issuance of 332,660 shares of Common Stock, par value $.01 per share (the
"Common Stock") of AmerisourceBergen Corporation (the "Registrant") which are
available for issuance, consisting of 332,660 shares under the AmerisourceBergen
Corporation 2001 Non-Employee Directors' Stock Option Plan (the "Plan"). A total
of 323,660 shares are being transferred from the following plans: (i) 169,000
shares under the AmeriSource Health Corporation 2001 Non-Employee Directors'
Stock Option Plan (the "AmeriSource Option Plan"),and (ii) 154,660 shares under
the Bergen Brunswig Corporation 1999 Non-Employee Directors' Stock Plan (the
"Bergen Option Plan" and together with the AmeriSource Option Plan, the
"Preexisting Plans").
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act") this registration statement shall be deemed to cover an
indeterminate number of additional shares which may be necessary to adjust the
number of shares reserved for issuance pursuant to the Plan for any future stock
split, stock dividend or similar adjustment of the outstanding Common Stock of
the Registrant.
(3) These 323,660 shares were included in the (i) 225,000 shares registered in
connection with the AmeriSource Option Plan and (ii) 277,500 shares registered
in connection with the Bergen Option Plan, pursuant to Registration Statement on
Form S-8 (File No. 333-69254) dated September 10, 2001. The total registration
fee paid at that time for the shares was $3,306.66. Pursuant to Instruction E to
Form S-8, the Registrant is transferring 323,660 shares from that prior
registration statement. The Registrant has filed a Post-Effective Amendment No.
2 to the prior registration statement deregistering these 323,660 shares.
(4) These 9,000 shares may be issued under the Plan to the extent shares subject
to options outstanding under the Preexisting Plans after the effective date of
the Plan are canceled, forfeited or expired.
(5) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(h)(1) and (c) under the Securities Act of 1933 on the
basis of the average of the high and low prices reported for shares of Common
Stock of the Registrant on the New York Stock Exchange on November 5, 2002 with
respect to 9,000 shares of Common Stock authorized for issuance under the Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The document(s) containing the information specified in Part I
of Form S-8 will be sent or given to participants in the Plan as specified by
Rule 428(b)(1) of the Securities Act. Such documents are not being filed with
the Securities and Exchange Commission (the "Commission"), but constitute, along
with the documents incorporated by reference into this Registration Statement, a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
AmerisourceBergen Corporation (the "Registrant") will furnish
without charge to each person to whom the prospectus is delivered, upon the
written or oral request of such person, a copy of any and all of the documents
incorporated by reference, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference to the information that is
incorporated). Requests should be directed to AmerisourceBergen Corporation,
1300 Morris Drive, Suite 100, Chesterbrook, Pennsylvania 19087, Attention:
William D. Sprague, Esq.; telephone number (610) 727-7000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by the
Registrant with the Commission are incorporated by reference into this
Registration Statement:
(a) The Registrant's latest Annual Report on Form 10-K filed
on December 28, 2001 for the year ended September 30, 2001;
(b) The Registrant's Amendment No. 1 to the Annual Report for
the year ended September 30, 2001 filed on Form 10-K/A on August 14, 2002;
(c) The Registrant's Quarterly Report on Form 10-Q filed on
February 14, 2002 for the quarter ended December 31, 2001;
(d) The Registrant's Quarterly Report on Form 10-Q filed on
May 15, 2002 for the quarter ended March 31, 2002;
(e) The Registrant's Quarterly Report on Form 10-Q filed on
August 14, 2002 for the quarter ended June 30, 2002;
(f) The Registrant's Amended Current Report on Form 8-K/A
dated October 29, 2001, amending the Form 8-K dated August 29, 2001;
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(g) The Registrant's Current Report on Form 8-K dated August 14,
2002;
(h) The Registrant's Current Report on Form 8-K dated November 5,
2002; and
(i) The description of the Common Stock contained in the
Registration Statement on Form S-4 (File No. 333-61440), filed with the
Commission on May 23, 2001, as amended, and the prospectus filed pursuant to
Rule 424(b)(3), filed with the Commission on August 1, 2001, including any
amendments or reports filed for the purpose of updating such description in
which there is described the terms, rights and provisions applicable to the
Registrant's Common Stock.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior
to the filing of a post-effective amendment which indicates that all securities
offered pursuant to this Registration Statement have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Delaware law provides that a corporation may include in its
certificate of incorporation a provision limiting or eliminating the personal
liability of its directors to the corporation or its stockholders for monetary
damages arising from a breach of fiduciary duty as a director, except for:
. a breach of duty of loyalty to the corporation or its
stockholders;
. acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
. payment under Section 174 of the Delaware law, which pertains,
among other things, to liability for the unlawful payment of a
dividend or the repurchase or redemption of stock in violation
of Delaware law; or
. any transaction from which the director derived an improper
personal benefit.
The amended and restated certificate of incorporation of
AmerisourceBergen Corporation provides that the directors of AmerisourceBergen
Corporation are entitled to the benefits of all limitations on the liability of
directors that are now or hereafter become available under Delaware law.
Specifically, no director of AmerisourceBergen Corporation will be liable to
AmerisourceBergen Corporation or its stockholders for monetary damages for
breach of
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fiduciary duty as a director, except for liability (a) for any breach of the
director's duty of loyalty to AmerisourceBergen Corporation or its stockholders,
(b) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) under Section 174 of the Delaware
law, or (d) for any transaction from which the director derived an improper
personal benefit.
Under Delaware law, a corporation may indemnify directors and
officers:
. for actions taken 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, if they had
no reasonable cause to believe that their conduct was
unlawful.
In addition, Delaware law provides that a corporation may
advance to a director or officer expenses incurred in defending any action upon
receipt of an undertaking by the director or officer to repay the amount
advanced if it is ultimately determined that he or she is not entitled to
indemnification.
The amended and restated certificate of incorporation of
AmerisourceBergen Corporation provides that AmerisourceBergen Corporation will
indemnify any person who is or was a director or officer of AmerisourceBergen
Corporation, or is or was serving at the request of AmerisourceBergen
Corporation as a director, officer or trustee of another corporation, trust or
other enterprise, with respect to actions taken or omitted by such person in any
capacity in which such person serves AmerisourceBergen Corporation or such other
corporation, trust or other enterprise, to the full extent authorized or
permitted by law, as now or hereafter in effect, and such right to
indemnification will continue as to a person who has ceased to be a director,
officer or trustee, as the case may be, and will inure to the benefit of such
person's heirs, executors and personal and legal representatives; provided,
however, that, except for proceedings to enforce rights to indemnification,
AmerisourceBergen Corporation shall not be obligated to indemnify any person in
connection with a proceeding (or part thereof) initiated by such person unless
such proceeding (or part thereof) was authorized in advance, or unanimously
consented to, by the Board of Directors of AmerisourceBergen Corporation.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith or incorporated by
reference as part of this Registration Statement:
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Exhibit No. Description
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5.1 Opinion of Pepper Hamilton LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Pepper Hamilton LLP (included in
Exhibit 5.1 hereto)
24.1 Power of Attorney (see signature pages at pp. 8-9)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes as follows:
(a) To file, during any period in which offers or sales are
being made pursuant to this Registration Statement, a post-effective amendment
to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in aggregate,
represent a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which is registered) and any deviation from the low or high end of
the estimated maximum range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in "Calculation of Registration Fee" table in
the effective Registration Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under
the Securities Act, 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.
(c) 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this Registration
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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 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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Chesterbrook, Pennsylvania, on November 6, 2002.
AMERISOURCEBERGEN CORPORATION
By: /s/ R. David Yost
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Name: R. David Yost
Title: Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints William D. Sprague, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Date: October 30, 2002 /s/ R. David Yost
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R. David Yost, President, Chief Executive
Officer and Director (Principal Executive
Officer)
Date: October 30, 2002 /s/ Michael D. DiCandilo
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Michael D. DiCandilo, Senior Vice
President and Chief Financial Officer
(Principal Financial and Accounting
Officer)
Date: October 30, 2002 /s/ Robert E. Martini
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Robert E. Martini, Director and Chairman
Date: October 30, 2002 /s/ Rodney H. Brady
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Rodney H. Brady, Director
Date: October 30, 2002 /s/ Charles H. Cotros
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Charles H. Cotros, Director
Date: October 30, 2002 /s/ R. C. Gozon
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Richard C. Gozon, Director
Date: October 30, 2002 /s/ Edward E. Hagenlocker
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Edward E. Hagenlocker, Director
Date: October 30, 2002 /s/ Jane E. Henney
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Jane E. Henney, M.D., Director
Date: October 30, 2002 /s/ James R. Mellor
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James R. Mellor, Director
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Date: October 30, 2002 /s/ Francis G. Rodgers
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Francis G. Rodgers, Director
Date: October 30, 2002 /s/ J. Lawrence Wilson
----------------------
J. Lawrence Wilson, Director
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EXHIBIT INDEX
5.1 Opinion of Pepper Hamilton LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Pepper Hamilton LLP (included in Exhibit 5.1
hereto)
24.1 Power of Attorney (see signature pages at pp. 8-9)