As Filed with the Securities and Exchange Commission on May 14, 2002
Registration No. 333-
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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 2002 EMPLOYEE STOCK PURCHASE PLAN
AMERISOURCEBERGEN CORPORATION 2002 MANAGEMENT STOCK INCENTIVE 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 (1) offering price per aggregate offering fee
share price (2)
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Common Stock 4,000,000 $75.63(2) $302,520,000 $27,831.84
($.01 par value)
1,771,128 (3) (3)
1,323,500 (4) (4)
600,000(5) $75.63(2) $ 45,378,000 $ 4,174.78
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Total 7,694,628 $347,898,000 $32,006.62
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(1) This registration statement (the "Registration Statement") registers the
issuance of 7,694,628 shares of Common Stock, par value $.01 per share (the
"Common Stock") of AmerisourceBergen Corporation (the "Registrant") which are
available for issuance, consisting of 4,000,000 shares under the
AmerisourceBergen Corporation 2002 Employee Stock Purchase Plan (the "ESPP
Plan") and 3,694,628 shares of Common Stock under the AmerisourceBergen
Corporation 2002 Management Stock Incentive Plan (the "Stock Incentive Plan" and
collectively with the ESPP Plan, the "Plans"). A total of 3,094,628 shares are
being transferred from the following plans: 1,771,128 shares under the Bergen
Brunswig Corporation 1999 Management Stock Incentive Plan (the "1999 Plan") and
1,323,500 shares under the AmeriSource Health Corporation 2001 Stock Option Plan
(the "2001 Plan" and collectively with the 1999 Plan, the "Preexisting Plans").
(2) 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 (the
"Securities Act") 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 May 9, 2002 with respect to 4,000,000 shares authorized for issuance
under the ESPP Plan and 600,000 shares authorized for issuance under the Stock
Incentive Plan.
(3) These 1,771,128 shares were included in the 3,189,559.48 shares registered
on September 10, 2001 in connection with the 1999 Plan pursuant to Registration
Statement on Form S-8 (File No. 333-69254). The total registration fee paid at
that time was $18,094.66. Pursuant to Instruction E to Form S-8, the Registrant
is transferring 1,771,128 shares from that prior registration statement. The
Registrant has filed a Post-Effective Amendment to the prior registration
statement deregistering these 1,771,128 shares.
(4) These 1,323,500 shares were included in the 3,140,654 shares registered on
September 18, 2001 in connection with the 2001 Plan pursuant to Registration
Statement on Post-Effective Amendment No. 1 on Form S-8 to Form S-4 (File No.
333-61440). The total registration fee paid at the time of filing the Form S-4
was $16,797.62. Pursuant to Instruction E to Form S-8, the Registrant is
transferring 1,323,500 shares from that prior registration statement. The
Registrant has filed a Post-Effective Amendment to the prior registration
statement deregistering these 1,323,500 shares.
(5) These 600,000 shares may be issued under the Stock Incentive Plan to the
extent that shares subject to options outstanding under the Preexisting Plans
after the effective date of the Stock Incentive Plan, are canceled, forfeited or
expired.
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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 Plans 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 Quarterly Report on Form 10-Q filed on February
14, 2002 for the quarter ended December 31, 2001;
(c) The Registrant's Amended Current Report on Form 8-K/A dated
October 29, 2001, amending the Form 8-K dated August 29, 2001; and
(d) 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 our Common Stock.
All documents filed by the Registrant or the Plans 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
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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:
o a breach of duty of loyalty to the corporation or its
stockholders;
o acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o 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
o 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 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:
o 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
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o 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,
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however, that, except for proceedings to enforce rights to indemnification,
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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 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:
Exhibit No. Description
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5.1 Opinion of Pepper Hamilton LLP
23.1 Consent of Ernst & Young LLP
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:
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(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
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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 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
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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 May 14, 2002.
AMERISOURCEBERGEN CORPORATION
By: /s/ R. David Yost
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Name: R. David Yost
Title: President and 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: May 14, 2002 /s/ R. David Yost
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R. David Yost, President, Chief Executive Officer and
Director (Principal Executive Officer)
Date: May 14, 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: May 14, 2002 /s/ Robert E. Martini
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Robert E. Martini, Director and Chairman
Date: May 14, 2002 /s/ Rodney H. Brady
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Rodney H. Brady, Director
Date: May 14, 2002 /s/ Charles H. Cotros
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Charles H. Cotros, Director
Date: May14, 2002 /s/ R. C. Gozon
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R. C. Gozon, Director
Date: May14, 2002 /s/ Edward E. Hagenlocker
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Edward E. Hagenlocker, Director
Date: May 14, 2002 /s/ Jane E. Henney, M.D.
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Jane E. Henney, M.D., Director
Date: May 14, 2002 /s/ James R. Mellor
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James R. Mellor, Director
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Date: May 14, 2002 /s/ Francis G. Rodgers
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Francis G. Rodgers, Director
Date: May 14, 2002 /s/ J. Lawrence Wilson
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J. Lawrence Wilson, Director
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ACKNOWLEDGMENT BY AGENT
I, William D. Sprague, have read the above power of attorney and I am
the person identified as the attorney-in-fact and agent for the principals whose
signatures appear above. I hereby acknowledge that in the absence of a specific
provision to the contrary in the power of attorney or in the Pennsylvania
Probate, Estates and Fiduciaries Code (20 Pa. C.S.) when I act as
attorney-in-fact and agent:
I shall exercise the power for the benefit of the principals.
I shall keep the assets of the principals separate from my assets.
I shall exercise reasonable caution and prudence.
I shall keep a full and accurate record of all actions, receipts and
disbursements on behalf of the principals.
/s/ William D. Sprague May 14, 2002
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William D. Sprague (Attorney-in-fact)
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EXHIBIT INDEX
5.1 Opinion of Pepper Hamilton LLP
23.1 Consent of Ernst & Young LLP
24.1 Power of Attorney (see signature pages at pp. 8-9)