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
Incorporation or Organization) Identification Number)
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 DEFERRED COMPENSATION PLAN
AMERISOURCEBERGEN CORPORATION 2001 RESTRICTED STOCK 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 Proposed Amount of
registered registered (1)(2) maximum maximum registration fee
offering price per aggregate offering
share price
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Common Stock 60,000 $ 69.48 (3) $ 4,168,800 (3) $ 383.53
($.01 par value)
Deferred Compensation $15,265,000 100% $ 15,265,000 $1,404.38
Obligations
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Total $ 19,433,800 $1,787.91
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(1) This registration statement (the "Registration Statement") registers the
issuance of (a) 60,000 shares of Common Stock, par value $.01 per share (the
"Common Stock") of AmerisourceBergen Corporation (the "Registrant") which are
available for issuance, consisting of: (i) 10,000 shares of Common Stock under
the AmerisourceBergen Corporation 2001 Deferred Compensation Plan (the "Deferred
Plan"), and (ii) 50,000 shares of Common Stock under the AmerisourceBergen
Corporation 2001 Restricted Stock Plan (the "Restricted Stock Plan" and together
with the Deferred Plan, the "Plans"), and (b) $15,265,000 of deferred
compensation obligations (the "Deferred Compensation Obligations") of the
Registrant under the Deferred Plan. The Deferred Compensation Obligations are
unsecured obligations of the Registrant to pay deferred compensation in the
future pursuant to compensation deferral elections made by participants in the
Deferred Plan in accordance with the terms of the Deferred Plan. This
Registration Statement also registers the issuance of deferral elections
relating to shares of Common Stock to be issued under the Restricted Stock Plan.
(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 Plans for any future
stock split, stock dividend or similar adjustment of the outstanding Common
Stock of the Registrant.
(3) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act of 1933, as
amended, 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 60,000 shares of Common Stock authorized for
issuance under the Plans.
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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 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.
AmerisourceBergen Corporation 2001 Deferred Compensation Plan
The following description of the Deferred Compensation
Obligations of the Registrant under the AmerisourceBergen Corporation 2001
Deferred Compensation Plan (the "Deferred Compensation Plan") is qualified by
reference to the Deferred Compensation Plan, which is included as an exhibit to
this Registration Statement. The shares of Common Stock issuable under the
Deferred Compensation Plan are not described herein as they are registered
pursuant to Section 12 of the Securities Exchange Act of 1934. Capitalized terms
used in this Item 4 description of the Deferred Compensation Plan and not
otherwise defined in this Registration Statement shall have the respective
meanings assigned to such terms in the Deferred Compensation Plan. The Deferred
Compensation Obligations incurred by the Registrant under the Deferred
Compensation Plan will be unsecured general obligations of the Registrant to pay
the compensation deferred in accordance with the terms of the Deferred
Compensation Plan and will rank equally with other unsecured and unsubordinated
indebtedness of the Registrant, from time to time outstanding, payable from the
general assets of the Registrant.
Under the Deferred Compensation Plan, the Registrant will
provide certain eligible management employees and non-employee directors with
the opportunity to defer a specified amount of cash compensation. The amount of
compensation deferred by each Participant is determined in accordance with the
Deferred Compensation Plan based upon the Participant's elections. Subject to a
minimum scheduled deferral amount that may be set by the Plan Administrator,
Employee Participants may elect to defer any amount of compensation for each
year they make a deferral election. Election forms must be filed for each year a
Participant wishes to defer compensation and each form shall specify the method
of payment of benefits and the time such payment is to commence.
A Participant must file an election form prior to January 1 of
that year or within 30 days after being selected to participate if other than at
the beginning of the Plan Year. An election to defer compensation attributable
to amounts earned under a long-term incentive plan is
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subject to the approval of the Committee and must be filed at least twelve
months prior to the date the amounts are otherwise scheduled to be paid under
that incentive plan.
Deferred compensation will be credited as Cash Credits, Fund
Credits or Stock Credits, depending upon the availability of Fund Credits and
Stock Credits as determined by the Board of Directors, based upon the election
of the Deferred Compensation Plan Participant. Cash Credits and Fund Credits
will be paid in cash and Stock Credits will be paid in shares of the common
stock of the Registrant ("Common Stock"). The amounts distributed will be based
upon the amounts deferred, as increased or decreased for deemed investment in
funds or Common Stock, as designated by the Participant from choices offered by
the Registrant, plus accrued interest and dividends ("Deferred Benefits"). The
Deferred Benefits will be distributed by the Registrant in accordance with the
terms of the Deferred Compensation Plan and payment will be made at the times
elected by the Participant in accordance with the Election Form.
Subject to terms and conditions established by the Board of
Directors, the Company may also credit amounts to a Participant as a company
contribution in the manner elected by the Participant as a Cash Credit, Fund
Credit or Stock Credit. The Board of Directors has the sole power to determine
whether and the extent to which credits are offered.
The Compensation deferred under the Deferred Compensation Plan
will continue for all purposes to be part of the general funds of the Registrant
and the Participant's Deferred Benefit will at all times represent the general
obligation of the Registrant. Each Participant will be a general creditor of the
Registrant with respect to all of the Registrant's deferred compensation
obligations to the Participant under the Deferred Compensation Plan, and will
not have a secured or preferred position with respect to his or her Deferred
Benefit. Nothing contained in the Deferred Compensation Plan shall be deemed to
create a trust or any fiduciary relationship of any kind.
Under the terms of the Deferred Compensation Plan, the right
of a Participant in or to amounts credited to the account of a Participant are
not assignable, transferable or subject to be taken in execution by levy,
attachment or garnishment, and any purported transfer, assignment, encumbrance
or attachment is void. The Registrant, by action of the Board of Directors,
without the consent of Participants, may amend or modify the Deferred
Compensation Plan at any time, except that no such action shall reduce or in any
manner adversely affect the rights of any Participant with respect to benefits
that are payable or may become payable under the Deferred Compensation Plan
based upon the balance of the Participants' accounts as of the effective date of
such action. The Registrant, by action of the Board of Directors, also reserves
the right at any time, or from time to time, to terminate the Deferred
Compensation Plan.
AmerisourceBergen Corporation 2001 Restricted Stock Plan
The AmerisourceBergen Corporation 2001 Restricted Stock Plan
(the "Restricted Stock Plan") allows participants to elect to defer the receipt
of restricted stock to which restrictions have lapsed pursuant to the terms of
an award and the Restricted Stock Plan (the "Deferral Elections"). The following
description of the Deferral Elections which may be made pursuant to the
Restricted Stock Plan is qualified by reference to the Restricted Stock Plan,
which is included as an exhibit to this Registration Statement. The shares of
Common Stock
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issuable under the Restricted Stock Plan are not described herein as they are
registered pursuant to Section 12 of the Securities Exchange Act of 1934.
Capitalized terms used in this Item 4 and not otherwise defined in this
Registration Statement shall have the respective meanings assigned to such terms
in the Restricted Stock Plan. The Deferral Elections will be unsecured
obligations of the Registrant to pay the shares deferred in accordance with the
terms of the Restricted Stock Plan. The Restricted Stock Plan is administered by
the Compensation Committee of the Board of Directors or such other committee of
the Board of Directors as may be designated by the Board of Directors for the
purpose of administering the Restricted Stock Plan from time to time (the
"Committee").
Under the Restricted Stock Plan, the Registrant will provide
non-employee directors with the opportunity to defer receipt of Common Stock to
which forfeiture restrictions may lapse for a period of time which is
established by the Committee. A Deferral Election must be filed by the last day
of the calendar year ending more than one year before the first day of the
calendar year in which the applicable restrictions may lapse. If the
restrictions on an award of restricted stock do not lapse before the
distribution date identified in a Deferral Election because of a failure to
satisfy any condition precedent, a Deferral Election will be null and void.
Shares subject to a Deferral Election will be distributed by the Registrant in
accordance with the Restricted Stock Plan.
The right to receive shares of Common Stock deferred under the
Restricted Stock Plan will at all times represent the general obligation of the
Registrant. Each participant will be a general creditor of the Registrant with
respect to his or her Deferral Elections. Nothing contained in the Restricted
Stock Plan will be deemed to create an escrow, trust, custodial account or
fiduciary relationship of any kind. Nothing contained in the Restricted Stock
Plan or an award of restricted stock will be construed to eliminate any priority
or preferred position of a grantee in a bankruptcy matter with respect to claims
for wages. The right to receive shares subject to a Deferral Election will not
be subject in any manner to attachment or other legal process, assignment or
encumbrance.
The Board of Directors of the Registrant has the authority to
terminate the Restricted Stock Plan at any time. Furthermore, the Restricted
Stock Plan may be amended by the Board of Directors or the Compensation
Committee at any time. No award of restricted stock granted under the Restricted
Stock Plan will be affected by any such termination or amendment without a
participant's written consent.
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;
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. 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 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.
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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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4.1 AmerisourceBergen Corporation 2001 Deferred Compensation Plan
4.2 AmerisourceBergen Corporation 2001 Restricted Stock Plan
5.1 Opinion of Pepper Hamilton LLP
5.2 Opinion of Pepper Hamilton LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Pepper Hamilton LLP (included in Exhibits 5.1 and 5.2 hereto)
24.1 Power of Attorney (see signature pages at pp. 10-11)
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;
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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 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 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
------------------------
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
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Date: October 30, 2002 /s/ James R. Mellor
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James R. Mellor, Director
Date: October 30, 2002 /s/ Francis G. Rodgers
----------------------
Francis G. Rodgers, Director
Date: October 30, 2002 /s/ J. Lawrence Wilson
----------------------
J. Lawrence Wilson, Director
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EXHIBIT INDEX
4.1 AmerisourceBergen Corporation 2001 Deferred Compensation
Plan
*4.2 AmerisourceBergen Corporation 2001 Restricted Stock Plan
(Exhibit 10.2 to the Registrant's Form 10-Q for the
quarter ended March 31, 2002)
5.1 Opinion of Pepper Hamilton LLP
5.2 Opinion of Pepper Hamilton LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Pepper Hamilton LLP (included in Exhibits 5.1
and 5.2 hereto)
24.1 Power of Attorney (see signature pages at pp. 10-11)
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*Incorporated by reference