As filed with the Securities and Exchange Commission on September 10, 2001.
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
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AMERISOURCEBERGEN CORPORATION
(Exact name of Registrant as specified in its charter)
1300 Morris Drive, Suite 100
Delaware Chesterbrook, PA 19087 23-3079390
(State of Incorporation) (Address of principal executive offices) (Zip Code) (I.R.S. Employer
Identification No.)
AMERISOURCE HEALTH CORPORATION 2001 STOCK OPTION PLAN
AMERISOURCE HEALTH CORPORATION 2001 NON-EMPLOYEE
DIRECTORS STOCK OPTION PLAN
AMERISOURCE HEALTH CORPORATION 1999 STOCK OPTION PLAN
AMERISOURCE HEALTH CORPORATION 1999 NON-EMPLOYEE
DIRECTORS STOCK OPTION PLAN
AMERISOURCE HEALTH CORPORATION 1996 STOCK OPTION PLAN
AMERISOURCE HEALTH CORPORATION 1996 NON-EMPLOYEE
DIRECTORS STOCK OPTION PLAN
AMERISOURCE HEALTH CORPORATION 1995 STOCK OPTION PLAN
BERGEN BRUNSWIG CORPORATION 1999 MANAGEMENT STOCK
INCENTIVE PLAN
BERGEN BRUNSWIG CORPORATION 1999 NON-EMPLOYEE
DIRECTOR'S STOCK PLAN
AMENDED AND RESTATED 1989 STOCK INCENTIVE PLAN OF BERGEN
BRUNSWIG CORPORATION AND SUBSIDIARY COMPANIES
PHARMERICA, INC. STOCK OPTIONS
(Full Title of the Plans)
William D. Sprague, Esq.
Vice President and Secretary
AmerisourceBergen Corporation
1300 Morris Drive, Suite 100
Chesterbrook, PA 19087
(Name and address of agent for service)
(610) 727-7000
(Telephone number, including area code, of agent for service)
With a Copy to:
Craig L. Godshall, Esq.
Dechert
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, Pennsylvania 19103
(215) 994-4000
CALCULATION OF REGISTRATION FEE
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Amount Proposed Proposed Amount of
Title of Securities to be Maximum Offering Maximum Aggregate Registration
to be Registered Registered(1) Price Per Share(2) Offering Price(2) Fee
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Common Stock of
AmerisourceBergen Corporation 8,948,440.57 $40.86585 $365,685,664.71 $91,421.42
par value $.01 per share shares
(1) Represents 59,346 shares under the AmeriSource Health Corporation 2001
Stock Option Plan, 225,000 shares under the AmeriSource Health Corporation
2001 Non-Employee Directors Stock Option Plan, 2,691,039 shares under the
AmeriSource Health Corporation 1999 Stock Option Plan, 138,000 shares under
the AmeriSource Health Corporation 1999 Non-Employee Directors Stock Option
Plan, 567,800 shares under the AmeriSource Health Corporation 1996 Stock
Option Plan, 40,000 shares under the AmeriSource Health Corporation 1996
Non-Employee Directors Stock Option Plan, 70,126 shares under the
AmeriSource Health Corporation 1995 Stock Option Plan, 3,189,559.48 shares
under the Bergen Brunswig Corporation 1999 Management Stock Incentive Plan,
277,500 shares under the Bergen Brunswig Corporation 1999 Non-Employee
Directors Stock Plan, 1,583,167.47 shares under the Amended and Restated
1989 Stock Incentive Plan of Bergen Brunswig Corporation and Subsidiary
Companies and 106,902.62 shares under the Pharmerica, Inc. Stock Options.
(2) For purposes of determining the registration fee in accordance with Rule
457(h) under the Securities Act of 1933, as amended, on the basis of
$40.86585 per share, which was determined by taking the weighted average of
the following: $35.45156 per share of Common Stock, par value $.01 per
share ("Common Stock") of the Registrant determined by the weighted average
exercise price of outstanding options issued under the Plans (7,219,549.08
shares); and for shares authorized but as yet unissued (1,728,891.49)
$63.475 per share of Common Stock based on the average of the high and low
sales price of the Common Stock of the registrant reported on the New York
Stock Exchange on August 31, 2001.
EXPLANATORY NOTE
AmerisourceBergen Corporation (the "Registrant") hereby files this
Registration Statement on Form S-8 relating to its Common Stock, par value $.01
per share, which may be sold upon the exercise of options (collectively,
"Options") granted under the option plans and agreements listed above
(collectively, the "Plans").
Pursuant to an Agreement and Plan of Merger dated as of March 16, 2001,
AmeriSource Health Corporation ("AmeriSource"), a Delaware corporation, and
Bergen Brunswig Corporation ("Bergen"), a New Jersey corporation, jointly formed
a new company, the Registrant, a Delaware corporation, (formerly named AABB
Corporation), with two subsidiaries, A-Sub Acquisition Corp., a Delaware
corporation, and B-Sub Acquisition Corp., a New Jersey corporation. On August
29, 2001, A-Sub Acquisition Corp. was merged with and into AmeriSource and B-Sub
Acquisition Corp. was merged with and into Bergen. As a result, AmeriSource and
Bergen each became a wholly-owned subsidiary of the Registrant. Pursuant to the
Merger Agreement, the Registrant assumed the obligations of AmeriSource and
Bergen under the Plans on the following terms:
(i) each option to purchase AmeriSource Common Stock (an "AmeriSource
Option") automatically was converted into an option to purchase shares of the
Registrant's Common Stock equal to the number of shares of AmeriSource Common
Stock issuable immediately prior to the effective time of the Merger upon
exercise of the AmeriSource Option, at an exercise price equal to the exercise
price of the AmeriSource option; and
(ii) each option to purchase Bergen Common Stock (a "Bergen Option")
automatically was converted into an option to purchase shares of the
Registrant's Common Stock equal to the number of shares of Bergen Common Stock
issuable immediately prior to the effective time of the Merger upon exercise of
the Bergen Option multiplied by 0.37, at an exercise price equal to the exercise
price of the Bergen Option divided by 0.37.
This Registration Statement relates to the Common Stock of the Registrant
issuable upon exercise of the Options pursuant to the Plans.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The documents(s) containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). Such documents are
not being filed with the Securities and Exchange Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. Such documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II of this Form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of the Registrant, AmeriSource and Bergen
which have been filed with the Commission are incorporated by reference in this
Registration Statement as of their respective dates:
(a) AmeriSource's latest annual report on Form 10-K filed on December
20, 2000 for the year ended September 30, 2000;
(b) Bergen's latest annual report on Form 10-K filed on December 29,
2000 for the year ended September 30, 2000;
(c) all reports filed by the Registrant, AmeriSource and Bergen
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since September 30, 2000;
(d) the description of the Registrant's Common Stock and the
Registrant's financial statements contained in the registration statement on
Form S-4 (File No. 333-61440), filed May 23, 2001, as amended, and including any
amendment or report filed for the purpose of updating such description;
(e) all documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this Registration Statement, but prior to the filing of a
post-effective amendment to this Registration Statement, which indicates that
all securities offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement. Each document
incorporated by reference into this Registration Statement shall be deemed to be
a part of this Registration Statement from the date of the filing of such
document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document which is incorporated
by reference into this Registration Statement.
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 liability
of its directors to the corporation and its stockholders for monetary damages
arising from a breach of fiduciary duty, except for:
. a breach of the 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 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, as amended, of
AmerisourceBergen provides that the directors of AmerisourceBergen 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 will be liable to AmerisourceBergen or its stockholders for
monetary damages for breach of fidiciary duty as director, except for liability
(a) for any breach of the director's duty of loyalty to AmerisourceBergen 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, which pertains, among other things, to liability for the
unlawful payment of dividends, 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 proceeding, 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, as amended, of
AmerisourceBergen provides that AmerisourceBergen will indemnify any person who
is or was a director or officer of AmerisourceBergen, or is or was serving at
the request of AmerisourceBergen 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 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.
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 Number Description
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4.1 The relevant portions of the Certificate of
Incorporation, as amended, of the Registrant defining
the rights of holders of Common Stock (incorporated by
reference to Exhibit 3.1 to the registration statement
on Form S-4 (File No. 333-61440), filed May 23, 2001,
as amended).
4.2 Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.2 to the
registration statement on Form S-4 (File No. 333-
61440), filed May 23, 2001, as amended).
5.1 Opinion of Dechert (counsel to the Registrant).
23.1 Consent of Ernst & Young LLP
23.2 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on signature page).
Item 9. Undertakings.
(a) 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;
(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. 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 was
registered) and any deviation from the low or high end of the
estimated maximum offering 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
the "Calculation of Registration Fee" table in the effective
registration statement; and
(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 (a)(1)(i) and (a)(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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(2) 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.
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 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 on Form
S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Chesterbrook, Commonwealth of Pennsylvania, on
September 10, 2001.
AMERISOURCEBERGEN CORPORATION
By: /s/ R. David Yost
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R. David Yost
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints R. David Yost as his 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 and file Registration Statement(s)
and any and all pre- or post-effective amendments to such Registration
Statement(s), with all exhibits thereto and hereto, and other documents with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agent, and each of them, full power and authority to do and perform each and
every act and thing requisite or 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 attorneys-in-fact and agents, or any of
them, or their or his substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
President, Chief Executive
/s/ R. David Yost Officer and Director September 10, 2001
---------------------- (Principal Executive Officer)
R. David Yost
Executive Vice President and
/s/ Neil F. Dimick Chief Financial Officer September 10, 2001
---------------------- (Principal Financial Officer
Neil F. Dimick and Principal Accounting
Officer)
/s/ Robert E. Martini
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Robert E. Martini Chairman September 10, 2001
/s/ James R. Mellor
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James R. Mellor Director September 10, 2001
/s/ Richard C. Gozon
--------------------------
Richard C. Gozon Director September 10, 2001
/s/ Rodney H. Brady
--------------------------
Rodney H. Brady Director September 10, 2001
/s/ Edward E. Hagenlocker
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Edward E. Hagenlocker Director September 10, 2001
__________________________
Francis G. Rodgers Director September 10, 2001
/s/ J. Lawrence Wilson
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J. Lawrence Wilson Director September 10, 2001
EXHIBIT INDEX
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Exhibit No. Document
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4.1 The relevant portions of the Certificate of Incorporation,
as amended, of the Registrant defining the rights of holders
of Common Stock (incorporated by reference to Exhibit 3.1 to
the registration statement on Form S-4 (File No. 333-61440),
filed May 23, 2001 as amended).
4.2 Amended and restated Bylaws of the Registrant (incorporated
by reference to Exhibit 3.2 to the registration statement on
Form S-4 (File No. 333-61440), filed May 23, 2001 as
amended).
5.1 Opinion of Dechert (counsel to the Registrant).
23.1 Consent of Ernst & Young LLP
23.2 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on signature page).